Final Order 1

Order Details: Chamber summons
Pdf Text: :1: Ch. Sum. No.30/2019 in S.C. Suit No.3821/2009
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
CHAMBER SUMMONS NO. 30 OF 2019
CNR NO.:MHCC010002412019
IN
S.C. SUIT NO. 3821 OF 2009
(HIGH COURT SUIT NO. 1621 OF 2009)
Mr. Ganpat Babu Pednekar ]...Plaintiff
Versus
Mr. Ashok Jethmal Sanghvi and another ]...Defendants
And
M/s. Star Developers and others ]...Respondents
And
Smt. Suvarnalata Ganpat Pednekar and others ]...Applicants
And
Mr. Mahendra Ganpat Pednekar ]...Respondent
Appearances:
Advocate Mr. Ruturaj Joshi for applicants/plaintiff.
Advocate Mr. Sharad Waghchoure for defendant No.1.
Advocate Mr. Ghadigaonkar for defendant No.2.
CORAM : HER HONOUR JUDGE
SONALI P. AGARWAL
(C.R.NO.14)
DATED : 17th JANUARY, 2020.
ORAL ORDER
This is a Chamber Summons filed by applicant Nos. 1 to 5 praying
that name of plaintiff be deleted and their names be incorporated in the
cause title of the Suit being the legal heirs of the deceased original
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:2: Ch. Sum. No.30/2019 in S.C. Suit No.3821/2009
plaintiff. It is further prayed that respondents be joined as party
defendant in the suit.
2. Applicant have stated that deceased plaintiff during his life time
filed Chamber Summons No.39/2017 and applied to join the
respondent Mahendra Pednekar, being the son of deceased plaintiff as
party and other respondents also as party to suit.
3. Applicant have further stated that after death of deceased
plaintiff, the right to sue survives. However, the respondent No.2 inspite
of being the son and legal heir of the deceased plaintiff is not prayed to
be added plaintiff since the original plaintiff had already applied for his
impleadment as defendant No.3 in pursuance of the Chamber Summons
No. 39 of 2017.
4. Applicant have further stated that they were not aware of the
procedure and requirement of bringing legal heirs on record and on
scrutiny of the papers and files, they learnt about the name of Advocate
of deceased plaintiff and they contacted him in the first week of
November, 2018 and prayed to allow Chamber Summons.
5. Defendant have filed reply to this Chamber Summons and
contended that Mahendra Pednekar and MHADA Authority are not the
defendants in the original suit and therefore, Chamber Summons is not
tenable in law. Defendant have further stated that present application is
made by five applicants but it signed by only applicant No.5. Defendant
have further contended that applicant No.1 is regularly appearing in
various dispute between defendant and her husband personally and
therefore, applicant is well aware about the dispute between defendant
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:3: Ch. Sum. No.30/2019 in S.C. Suit No.3821/2009
and original plaintiff.
6. Defendant have further contended that without obtaining letter of
administration the right to sue does not survive in the present suit after
demise of the original plaintiff. Defendant No.2 has further stated that
suit premises stands in her name and prayed to dismiss the Chamber
Summons on the ground of limitation, change in cause of action and on
the ground that right to sue does not survive to prosecute the present
suit.
7. It is not denied by any of the parties that applicants are legal
heirs of deceased plaintiff. It appears there is delay of some months in
filing application to bring legal heirs on record. But it is probable that
applicants were not aware about this case particularly and hence there
was delay. Only on the ground of delay, it will not be proper to restrain
applicants from fighting their suit on merits. Hence, it will be proper to
condone delay in filing the application.
8. Considering the fact that deceased plaintiff filed another Chamber
Summons No.39/2017 contending that his son and other respondents
be made defendants. Considering the pleading of the parties, it will be
proper to allow application to implead son of original plaintiff and other
respondents as defendants.
9. It appears deceased plaintiff has filed Chamber Summons
No.39/2017, it is not yet decided. When applicants are allowed to
prosecute the suit, it will be proper to allow them to implead themselves
in Chamber Summons No.39/2017.
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:4: Ch. Sum. No.30/2019 in S.C. Suit No.3821/2009
10. Admittedly, applicants are legal heirs of deceased plaintiff. In the
present suit, original plaintiff has prayed the relief that defendant No.1
be directed to put the plaintiff in possession of the flat. The right of
possession of immovable property does not expire on death of original
plaintiff. Therefore, it appears that the right to sue is surviving on death
of deceased plaintiff. Therefore, on the ground that there is no right to
sue surviving, it will not be proper to disallow Chamber Summons.
Hence, following order :
ORDER
1. Chamber Summons No.30 of 2019 is allowed in terms of prayer
clauses (i), (ii), (iii) and (iv).
2. Applicants to carry out amendment accordingly.
3. Chamber Summons No.30 of 2019 stands disposed of.
(SONALI P. AGARWAL)
Judge,
Date: 17.01.2020. City Civil Court,
Gr. Bombay.
Dictated on : 17.01.2020
Transcribed on : 17.01.2020
Signed on : 17.01.2020
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:5: Ch. Sum. No.30/2019 in S.C. Suit No.3821/2009
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
24.01.2020 At 02:10 p.m. Mr. Subhash Sukhdeo Poul
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ Sonali P. Agarwal
(C.R.NO.14)
Date of pronouncement of
Judgment/Order
17.01.2020
Judgment/Order signed by P.O. on 17.01.2020
Judgment/Order uploaded on 24.01.2020
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