Final Order 1

Order Details: Chamber summons
Pdf Text: CNR No. MHCC010008972018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO.118 OF 2018
IN
SUIT NO.6926 OF 2004
Kanaiyalal Y. Fadia ...Plaintiffs.
V/s.
Ketan N. Fadia & ors. ...Defendants.
And
Mrs.Kajal Munjal Mehta & Anr. ...Applicants.
Appearances:
Ld. Adv.Ms.Pallavi Desai for applicants.
Ld. Adv.Ms.Neha Soni for defendants.
CORAM : HIS HONOUR JUDGE
SHRI ABHIJEET A.
NANDGAONKAR
(C.R.No.20)
DATED : 4th June,2018
ORDER
By way of this chamber summons applicants prayed for carrying
out amendment in the plaint by condonation of delay.
2. In supporting affidavit of Ms.Kajal Mehta she submitted that,
present plaintiff Kanaiyalal Y. Fadia filed this suit against defendants for
recovery of peaceful vacant possession of the suit flat. During the
pendency of the suit original plaintiff expired on 28.11.2017 at Pune
and therefore, applicants are the only surviving legal heirs and want to
continue the suit. Therefore, she prayed that, they be added in the
array of plaintiff as legal heirs of deceased plaintiff and necessary
amendments in the plaint to that effect be permitted.
-- 1 of 4 --
CS 118/2018 .. 2 .. Suit No.6926/2004
3. After service of chamber summons, defendants appeared and
filed their formal objection to the chamber summons. They submitted
that, in their suit also they have seeking amendment for addition of
legal heirs of defendant and therefore, they have formerly objected this
chamber summons.
4. Heard learned Advocate Ms.Pallavi Desai for applicants and
learned Advocate Ms.Neha Soni for defendants. Perused the
submissions and supporting affidavit on record.
5. As per death certificate issued by Municipal Corporation of Pune,
original plaintiff reported expired on 28.11.2017. The chamber
summons came to be lodged on 17.01.2018. It is quite within
limitation. No other surviving legal heirs appear. The power of
attorney filed by plaintiff also stated the said fact. Therefore, nature of
the suit in respect of possession of the suit flat clearly indicates that,
right to sue survives, so also the cause of action. Therefore, applicants
need to be impleaded as legal heirs of plaintiff in array of plaint suit.
Hence, to that effect necessary amendments in the title clause of the
plaint and paragraph No.1(a) is also necessary. It will not change the
nature of the suit. It is formal in nature. The bar of commencement of
trial will not arise. Due diligence is also shown. Hence, to determine
the real question of controversy involved between the parties, proposed
amendment in the plaint is necessary. It will not cause prejudice to
other side.
6. In view of above observations chamber summons needs to be
made absolute. In the circumstances, parties are directed to bear their
costs and hence, I pass the following order :
-- 2 of 4 --
CS 118/2018 .. 3 .. Suit No.6926/2004
O R D E R
1. Chamber Summons No.118 of 2018 in Suit No.6926 of
2004 is made absolute.
2. Applicants to carry out the amendment as per schedule
attached to the chamber summons within 14 days from the
date of this order.
3. Amended copy of plaint be filed on record and copies of
amended plaint be served upon other side.
4. Parties to bear their costs.
( ABHIJEET A. NANDGAONKAR )
Judge, (C.R.No.20)
Dt.:04/06/2018 City Civil Court, Gr. Mumbai
Dictated on : 04.06.2018
Transcribed on : 04.06.2018
Signed on : 04.06.2018
kps/
-- 3 of 4 --
CS 118/2018 .. 4 .. Suit No.6926/2004
“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
05.06.2018 at 10.49 a.m.
UPLOAD DATE AND TIME
(KISHOR PRAKASH SHERWADE)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI A.A.
NANDGAONKAR
(COURT ROOM NO.20)
Date of pronouncement of judgment/order 04.06.2018
Judgment/order signed by P.O. on 04.06.2018
Judgment/order uploaded on 05.06.2018
-- 4 of 4 --