Final Order 1

Order Details: Chamber summons
Pdf Text: ORDER ..1.. CS NO. 89/2020
MHCC010007062020
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
CHAMBER SUMMONS NO. 89 OF 2020
IN
S.C. SUIT NO. 4029 OF 2009
(H.C. SUIT NO.1980 OF 2009)
Shree Shakti Developer. …Plaintiff.
Versus
Mohan Malhotra and others. … Defendants.
And
Aatish Mahadeo Naik and others. … Respondents.
Advocates
S.K. Paranjpe for the plaintiff.
None for defendants and respondents.
CORAM : HIS HONOUR JUDGE
Sunil T. Soor.
(COURT No.: 2)
DATED : 11th March 2022
ORAL ORDER
Heard advocate for both parties on chamber summons moved on
behalf of the plaintiff for deleting name of defendant no.9 and 12 from
cause title of the plaint as well as chamber summons no.2400/2014,
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ORDER ..2.. CS NO. 89/2020
and adding legal heirs of defendant no.12 in cause title of the plaint as
well as chamber summons no.2400/2014.
2. Contention of advocate for the plaintiff is that present suit was
transferred from the Hon'ble High Court to this Court in pursuance of
the enhancement of pecuniary jurisdiction of this Court and appeared
on board for the first time on 07.03.2013. On 30.10.2015, suit was
dismissed in default. Plaintiff had taken out notice of motion no.
4349/2016 to set aside order of dismissal of the suit. Said notice of
motion is allowed vide order dated 21.11.2019 and the suit is restored.
On 25.11.2019, plaintiff orally intimated defendant no.11 about
restoration of the suit. Defendant no.11 orally intimated to partner of
the plaintiff (deponent in the present chamber summons) that
defendant no.9 and 12 is expired. On request of the deponent,
defendant no.11 provided details of legal heirs of defendant no.9 and
12 on 16.12.2019.
3. Defendant no.9 is expired on 23.09.2017. He was unmarried
and left behind two legal heirs i.e., defendant no.10 and 14. Right to
sue survives on defendant no.10 and 14. Defendant no.12 expired on
14.05.2015 leaving behind his two sons and one daughter i.e.,
respondents.
4. Plaintiff was not earlier known about death of defendant no.9
and 12 as the plaintiff had not received information from other
defendants. Hence chamber summons is within limitation. Proposed
amendment shall not change the nature of suit or cause of action.
Hence prayed for allowing the chamber summons.
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ORDER ..3.. CS NO. 89/2020
5. Perused the chamber summons alongwith affidavit in support of
it and proceedings of the case. Defendants and respondents failed to
appear before the Court in spite of service of copy of chamber
summons. Chamber summons is supported with affidavit of Kumarpal
Babulal Jain, partner of the plaintiff (deponent) and also death
certificate of defendant no.9 and 12.
6. Admittedly the suit was pending before the Hon'ble High Court
and transferred to this Court on the ground of the enhancement of
pecuniary jurisdiction of this Court and appeared on board for the first
time on 07.03.2013. On 30.10.2015, suit was dismissed in default.
Plaintiff had taken out notice of motion no. 4349/2016 to set aside
order of dismissal of the suit. Said notice of motion is allowed vide
order dated 21.11.2019 and the suit is restored.
7. As per Order 22, Rule 10(A) of the Civil Procedure Code (CPC),
it is the duty of pleader to communicate to Court death of a party
whenever he comes to know death of that party. But after restoration of
the suit and in spite of service of notice, none of the defendant
appeared before this Court. They failed to communicate to the Court
about death of defendant no.9 and 12. Due to dismissal of the suit and
pendancy of notice of motion for restoration of the suit, plaintiff was
ignorant about death of defendant no.9 and 12. On 25.11.2019,
plaintiff came to know from defendant no.11 about death of defendant
no.9 and 12. Plaintiff taken out present chamber summons on
17.01.2020 on providing details of legal heirs of defendant no.9 and 12
on 16.12.2019 by defendant no.11. Hence chamber summons is within
limitation.
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ORDER ..4.. CS NO. 89/2020
8. Suit is for declaration that judgment and decree passed by this
Court in SC Suit No.6555/1991 filed by defendant no.3 to 8 against
Nariman Mehta and others is null and void and not binding on the
plaintiff, Deed of Conveyance dt. 09.08.2008 executed by defendant
no.9 to 14 in favour of the plaintiff in respect of the suit property is
valid and binding on defendant no.1, 2 and also on defendant no. 3 to
8, Conveyance dated 04.03.2009 executed by defendant no.3 to 8 in
favour of defendant no.1 and 2 is null and void to the extent of the right
acquired by the plaintiff from defendant no.9 to 14 and is not binding
on the plaintiff and for permanent injunction restraining defendant no.1
and 2 from putting any construction or development work on the suit
property. Considering the nature of suit, right to sue survive against
defendant no.10 and 14, and legal heirs of defendant no.12. Under the
facts and circumstances, no prejudice would be caused to defendants if
chamber summons is allowed. Hence chamber summons is liable to be
allowed. In the result, following order:
ORDER
1. Chamber Summons No.89/2020 is allowed.
2. Plaintiff to carry out the amendment as per the schedule
annexed with the chamber summons within 14 days from the date of
this order.
3. Plaintiff to carry out amendment in chamber summons
no.2400/2014 simultaneously and serve copy of amended plaint on all
defendants and legal heirs of defendant no.12 also.
(Sunil T. Soor)
Judge
City Civil Court, Gr.Mumbai
Date : 11.03.2022
Typed on : 11.03.2022
HHJ signed on : 11.03.2022
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ORDER ..5.. CS NO. 89/2020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
DATED 11.03.2022, 2.30 p.m.
UPLOAD DATE AND TIME Mrs. V. N. Rajgole.
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. S. T. Soor
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
11.03.2022
JUDGMENT/ORDER signed by P.O.
on
11.03.2022
JUDGMENT/ORDER uploaded on 11.03.2022
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