Final Order 1

Order Details: Chamber summons
Pdf Text: CS 100-19 in NM. No. 2864/17
In Suit No. 712-2012 1
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
CHAMBER SUMMONS NO.100 of 2019
IN
NOTICE OF MOTION NO. 2864 OF 2017
IN
S.C. SUIT NO.1290 of 2017
(CNR NO.MHCC010094082018)
Mrs. Smitha Shashikant Shetty & Ors. .. Plaintiffs
Versus
Smt. Sushilaben K. Sotta & Ors. .. Defendants
Appearances :
Mr. G.K.Tripathi, Advocate for plaintiff present.
Mrs. Radhika Gupta, Advocate for defendant present.
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
C.R. No. : 32
Dated : 19th June, 2019.
ORDER
1. The applicant / Original Plaintiff has filed Notice of Motion No.
2864 of 2017 for contempt against Defendants for not obeying consent
Decree dated 07.02.2013, passed in Suit No. 712/12.
2. It is contended by the plaintiff that the Defendant No. 2 to 5 filed
their reply on 05.02.2018 whereby informed that the Defendant No. 1
is expired on 23.01.2015 and Defendant No. 2A is expired on
09.08.2014. The Legal Representative of Defendant No. 2A are already
on record. The plaintiff wanted to bring Legal Representative of
-- 1 of 6 --
CS 100-19 in NM. No. 2864/17
In Suit No. 712-2012 2
Defendant No. 1 on record. Therefore the plaintiff filed Chamber
Summons No. 100 of 2019 praying to bring Legal Representative of
Defendant No. 1 on record. The Proposed Legal Representative of
Defendant No. 1 is "Mrs. Keerti Sotta."
3. The Chamber Summons is strongly opposed by the Defendants by
filing their reply on the ground that the proposed Legal Heir of the
Defendant No. 1 was not party to the main suit, hence, she can not be
included in the Notice of Motion. The Defendant No. 1 is expired on
23.01.2015 and the plaintiff filed Notice of Motion in the year 2017.
Therefore, there is delay in presenting instant Notice of Motion. Hence,
Notice of Motion is not tenable.
4. It is further contended by the defendant that the plaintiff prayed
for relief which were never claimed in the original suit proceedings.
Hence, the Defendant prayed for dismissal of application. The
Defendant in support of their arguments, following Judgments :
a) LAWS (MAD)20098525 High Court of Madras, Nazeema
Parveen V/s. A. Zubeidha Bee.
b) Andhra High Court, Nehra Chits (P) Ltd. v/s. B.Ramachandra
Reddy & Ors.
5. Heard Advocate for the plaintiff. He has vehemently contended
that the Original Plaintiffs have filed Suit No. 712 of 2012 against the
Defendants, which was disposed off by filing consent term, whereby it
was agreed that the plaintiffs would pay lumpsum amount of Rs.
30,000/ as arrears of rent and permitted increases from July 2006 upto
to February 2012. The Defendant would construct the Commercial
-- 2 of 6 --
CS 100-19 in NM. No. 2864/17
In Suit No. 712-2012 3
premises on the plot of land bearing C.T.S.No. 518, 518/1 to 7, Survey
No. 162, Hissa No. 1, Village Mulund (East), L.T. Road, Mulund (East),
Mumbai 400 081 and Defendant No. 8 and 9 therein will be jointly
given new commercial premises of total admeasuring 3000 sq. ft.
carpet area. It was further agreed that new construction of the new
Building would be completed with occupancy certificate within 30
months from the date of execution of the consent term. The Defendant
No. 1 to 6, there in, jointly and severely gave undertaking to the Court
to handover vacant and peaceful possession of agrred new commercial
premises on or before 07.09.2015.
6. It is contended by the plaintiff that inspite of they have handed
over vacant possesion to the Defendant and building is demolished by
the defendants and even lapse of period of 30 months, the defendant
did not comply with the undertaking given to the Court, hence, they
have committed cotempt of consent decree passed in suit No. 712 of
2012.
7. It is submitted by the plaintiff that they got to know about the
fact of the death of Defendant no. 1, when the Defendants filed thier
reply on 05.02.2018. Therefore, they have immediately filed Notice of
Motion for bringing Legal Heirs of the Defendant No. 1 on record. It is
contended by the plaintiff that, the right to sue against Defendant No. 1
is still continue. Hence, there is no abatement. The Legal Heir of
Defendant No. 1, is necessary in order to enable to Court effectively and
completely adjudicate upon and settled all question in the suit,
therefore, the presence of Legal Representative of Defendant No. 1 is
essential.
-- 3 of 6 --
CS 100-19 in NM. No. 2864/17
In Suit No. 712-2012 4
8. It is further submitted that, as per Order 1, Rule 10 of Code of
Criminal Procedure, Court can add any person as party at any such
proceeding, if the presence of person in the Court is necessary in order
to unable the court to effectively and completely adjudicate upon and
settled all questions in the suit. Therefore, plaintiff has prayed for
addition of Legal Heir of Defendant No. 1 as party to the present
proceedings. In support of his submission, he has relied on the
judgment of Hon'ble Apex Court reported in (2017) 9 Supreme Court
cases 700 in the case of Pankajbhai Rameshbhai Zalavadiya V/s.
Jethabhai Kalabhai Zalavadiya.
9. As per Article 120 of Limitation Act, the Legal Representative of
the deceased needs to be brought on record within 90 days from the
date of death. As per Order 22, Rule 10(A), it is the duty of pleader to
communicate the fact of death of the party. The Defendant informed
about the death of Defendant No. 1 by filing their reply on 05.02.2018.
The plaintiff has filed Chamber of Summons on 10.04.2018, therefore,
in my view, the plaintiff has filed application within limitation. Hence,
contention of the plaintiff that Chamber Summons of the plaintiff is not
within limitation is not sustainable.
10. As far as regarding issue of maintainability of contempt
proceedings against Legal Representative of deceased Defendant No. 1
is concerned, in my view, the said issue can be decided in the Notice of
Motion No. 2864 of 2017. At present Keerti Sotta is the Legal
Representative of the Defendant No. 1, hence, for continuation of the
proceedings, the plaintiff is allowed to add her name as Legal
Representative of Defendant No. 1. In my view, the issue of
maintainability of contempt proceedings against her can be kept open
-- 4 of 6 --
CS 100-19 in NM. No. 2864/17
In Suit No. 712-2012 5
and would be decided at the time of hearing of Notice of Motion No.
2864 of 2017. In view of the above, I allowed Chamber Summons of
the plaintiff in following terms.
ORDER
1. Chamber Summons No.100/2019 is made absolute in terms
of prayer clause A and plaintiff is allowed to bring Smt. Keerti
Sotta as Legal Representative of Defendant No. 1 on record.
2. Plaintiff is allowed to made consequential amendment within
14 days from the date of order.
3. No Order as to the cost.
4. Chamber Summons No. 100/2019 is disposed off accordingly.
(A.H.Laddhad)
Additional Judge
Bombay City Civil Court
Dated : 19.06.2019 Greater Mumbai
Dictated on : 19.06.2019
Transcribed on : 19.06.2019
Draft submitted on : 19.06.2019
Checked on : 27.06.2019
Signed on : 01.07.2019
-- 5 of 6 --
CS 100-19 in NM. No. 2864/17
In Suit No. 712-2012 6
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
01/07/2019 at 4.00 p.m. (Ms. V.V.Sawant)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room no.)
Shri A.H.LADDHAD
(C.R. No.32)
Date of Pronouncement of
JUDGMENT/ ORDER
19/06/2019
JUDGMENT/ORDER signed by
P.O. on
01/07/2019
JUDGMENT/ORDER uploaded
on
01/07/2019
-- 6 of 6 --