Final Order 1

Order Details: Chamber summons
Pdf Text: :1: Ch. Sum. No.137/2018 in Suit No.8808/1992
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
CHAMBR SUMMONS NO. 137 OF 2018
CNR NO.: MHCC010010952018
IN
SUIT NO. 8808 OF 1992
(HIGH COURT SUIT NO.2031 OF 1992)
Stanislaus Frank Rodrigues ]...Plaintiff
Versus
Arthur D'souza and others ]...Defendants
Appearances:
Advocate Mr. Gada for the plaintiff.
Advocate Mr. Bijliwala for defendant No.14.
CORAM : HER HONOUR JUDGE
SONALI P. AGARWAL
(C.R.NO.14)
DATED : 24th JANUARY, 2020.
ORAL ORDER
This is a Chamber Summons filed by plaintiff to bring legal heirs
of defendant Nos. 9, 3 and 1 on record and carry out amendment.
2. Plaintiff has stated that he was not aware about proceedings to be
taken to bring on record legal heirs of deceased. He has further stated
that he recently at the funeral of his brother, i.e. defendant No.9
07.10.2017, came to know about demise of defendant Nos. 1 and 3.
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3. Plaintiff has further stated that defendant No.1 died on
14.02.2017, defendant No.3 died on 12.01.2010 and defendant No.9
died on 06.10.2017. Plaintiff has further stated that due to the
defendant No.9's sudden death and performing of his rituals, he was not
able to give this information to his Advocate earlier. He has further
stated that he was not aware of proceedings are required to bring on
record the legal heirs of the deceased. Therefore, he did not inform his
Advocate about the death of defendants and therefore, there was delay
in taking out Chamber Summons.
4. Plaintiff has stated in his rejoinder that he has not read the
Written Statement filed by defendant No.14 nor his Advocate. Advocate
for defendant No.3 has not informed the Court about death of
defendant No.3 as required under Order XXII, Rule 10A of the Code of
Civil Procedure, 1908. Plaintiff has further stated that he admits that
plaintiff No.2 expired on 14.06.2000 and accordingly Chamber
Summons was taken out for deleting the name of deceased plaintiff
No.2. Plaintiff has further stated that he is not aware that defendant
No.14 had pointed out death of plaintiff No.2 and defendant No.3 in his
Written Statement.
5. Defendant No.14 has filed reply to this Chamber Summons and
stated that it is an admitted position that the Written Statement of
defendant No.14 was served upon plaintiff's side. Defendant No.14 has
further stated that it is irrelevant whether the plaintiff his Advocate
actually perused the Written Statement or not. Defendant No.14 has
further stated that plaintiff cannot seek to use his own negligence as a
defence. Defendant No.14 has further stated that the plaintiff had
multiple opportunities to explain the reasons and give particulars of the
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delay but plaintiff has merely denied that there is no delay. Defendant
No.14 has further stated that this Chamber Summons is barred by law
of limitation. Defendant No.14 has further stated that plaintiff No.2
expired on 14.06.2002, but Plaint is not amended till today. Defendant
No.14 has further stated that plaintiff has not explained as to when and
where he has obtained the Death Certificate of defendant Nos. 1 and 3
and prayed for rejection of the Chamber Summons.
6. Advocate for the plaintiff has cited judgment of the Hon'ble Apex
Court in case of Perumon Bhagvathy Devaswom vs. Bhargavi Amma
(Dead) by LRs. and Ors., MANU/SC/7894/2008, Civil Appeal
No.4440 of 2008 (Arising out of SLP ( C) No.6111 of 2006) decided
on: 11.07.2008, in which it is held that, “the words “sufficient cause for
not making the application within the period of limitation” should be
understood and applied in a reasonable, pragmatic, practical and liberal
manner, depending upon the facts and circumstances of the case, and the
type of case. The words 'sufficient cause' in section 5 of Limitation Act
should receive a liberal construction so as to advance substantial justice,
when the delay is not on account of any dilatory tactics, want of bonafides,
deliberate inaction or negligence on the part of the appellant.” In the case
in hand also plaintiff has stated that he was not aware that on death of
parties and that legal heirs are required to be brought on record.
Plaintiff has stated that though Written Statement served upon them,
they did not read the same in which it was mentioned that, defendant
Nos. 1 and 3 dead. Ignorance of law is not an excuse. But it is not
impossible that a layman was not knowing that legal heirs are required
to be brought on record and he did not read the Written Statement. It is
pertinent to see that suit is filed by plaintiff. There is nothing brought
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on record to show that why plaintiff will have interest in delaying the
suit and what benefit he was going to get by delaying the proceeding of
suit. There is nothing on record to show that the delay was deliberate
and intentional. Therefore, this case law is squarely applicable.
7. Ld. Advocate for the defendant cited judgment of the Hon'ble
Allahabad High Court in case of M/s. M.X. de Nornha & Sons,
Cawnpore vs. Commissioner of Incometax, U.P. and Ajmer
Merwara, Lucknow, 1950 SCC OnLine All 301 : AIR 1952 All 137 :
(1950) 18 ITR 928, in which it is held that, “a notice was sent by
registered post to the address given by the assessee and it was received by
an employees of the firm, who even used the seal of the firm, on its behalf.
Therefore, these facts are sufficient to hold that there was a valid service of
the notice on the assessee, as contemplated by S. 63, Income Tax Act. In
the case in hand also Written Statement is served upon plaintiff
therefore, it has to be hold that Written Statement was received by
plaintiff. But plaintiff has contended that he did not read Written
Statement in which it was mentioned that, “the parties have dead.”
When plaintiff is served with Written Statement it is quite difficult to
believe that he did not read the Written Statement. But no reason is
brought on record as to why plaintiff would like to not proceed with the
suit when he paid Court fees and spent time in fling the suit. Therefore,
it has to be held that as a layman he failed to understand that legal
heirs are required to be brought on record and for his such conduct
which is not deliberate or intentional he should not be punished but
should be given an opportunity to fight the case on merits.
8. The Ld. Advocate for the plaintiff cited judgment of the Hon'ble
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Andhra Pradesh High Court in case of Food Corporation of India,
Tadepalligudem vs. Sri Ramchandra Boiled and Raw Rice Mill and
Ors., MANU/AP/0157/1985, Civil Revn. Petn. Nos. 781 of 1983,
1497 and 2231 of 1982, decided on : 20.04.1983, in which it is held
that, “admittedly intimation was given on the last day of the 90th day from
the date of death of the deceased defendant and details of legal
representatives were not given. The report was submitted to the petitioner
informing the name names of the proposed respondent on 15976 and on
the next day i.e., on 16976 an application to that effect was filed.” In
the present case in hand defendant No.14 in his written statement
pointed out that the the parties have died. But defendant No.14 has
nowhere argued that they had also given the names of the legal heirs to
plaintiff. In the case in hand immediately on filing the Written
Statement by defendant No.14, the present application is not moved.
But in the case in hand also plaintiff has specifically contended that he
was not aware that the death of the parties has to be communicated to
Advocate and steps to be taken. Therefore, facts of the cited case and in
hand are different. Hence, this case law is not applicable to the case in
hand.
9. Ld. Advocate for the defendant has cited judgment of the Hon'ble
Apex Court in case of Katari Suryanarayana And Others vs.
Koppisetti Subba Rao And Others, (2009) 11 SCC 183, in which it is
held that, “it is not in dispute that the appellants were neighbours. They
were coshares. The respective dates of the death of Respondents 2 and 3,
thus, were known to them. It is difficult to conceive that the petitioners
were not in touch with their learned advocates from 1999 to December
2006. It not every week, they are expected to contact their lawyers once in
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a year. Ignorance of legal consequence without something more would, in
our opinion, not be sufficient to condone such a huge delay. The appellants
are literates. They have been fighting their cases for a long time.” In the
case in hand parties have not pleaded in this Notice of Motion that they
are neighbourer. In the case in hand plaintiff has clearly stated that he
did not read Written Statement filed by defendant No.14 and was not
aware of death of some of parties. Therefore, facts of the cited case and
in hand are different. In the case in hand nothing brought on record
showing delay is deliberate and circumstances show that sufficient
cause is shown by plaintiff for not bringing legal heirs on record and the
delay. Therefore, this case law is not applicable to the case in hand.
10. Ld. Advocate for the defendant cited judgment of the Hon'ble
Apex Court in case of Balwant Singh (Dead) vs. Jagdish Singh And
Others, (2010) 8 SCC 685, in which it is held that, “it is clear from a
bare reading of the above paragraph that the applicants were totally
callous about pursuing their appeal. They have acted irresponsibly and
even with negligence. Besides this, they have not approached the Court
with clean hands. The applicant, who seeks aid of the Court for exercising
its discretionary power for condoning the delay, is expected to state correct
facts and not state lies before the Court. Approaching the Court with
unclean hands itself is a ground for rejection of such application.” In the
case in hand plaintiff has clearly stated that they did not read Written
Statement and he was not knowing that the death of parties has to be
communicated to his Advocate. It is pertinent to see that no reasons has
brought on record why plaintiff will delay the proceeding when suit is
filed by him. In the case in hand nothing to show that delay is
deliberate. In the case in hand, there is nothing to show that plaintiff
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are approaching the Court with false facts and with unclean hands and
with malafide intention. Therefore, facts of the cited case and in hand
are different. Hence, this case law is not applicable to the case in hand.
11. As discussed above, plaintiff has stated that he was not knowing
that death of the parties has to be communicated to his Advocate and
he did not read the Written Statement and therefore, there was delay in
bringing legal heirs on record and proceeding with the suit. The reasons
stated by plaintiff shows that the delay is not deliberate but the delay is
for long period. Therefore, for such delay, defendant has to be
compensated, hence, Chamber Summons is required to be granted
subject to cost. Hence, following order:
ORDER
1. Chamber Summons No.137 of 2018 is allowed, subject to cost of
Rs.5000/ to be given to defendant No.14 by plaintiff.
2. Chamber Summons No. 137 of 2018 stands disposed of.
(SONALI P. AGARWAL)
Judge,
Date: 24.01.2020. City Civil Court,
Gr. Bombay.
Dictated on : 24.01.2020
Transcribed on : 24.01.2020
Signed on : 24.01.2020
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
29.01.2020 At 05.01 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
24.01.2020
Judgment/Order signed by P.O. on 24.01.2020
Judgment/Order uploaded on 29.01.2020
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