Final Order 1

Order Details: Chamber summons
Pdf Text: 1 CS No. 167-2020 in SU-349-2019
IN THE CITY CIVIL COURT AT MUMBAI.
CHAMBER SUMMONS NO.167 OF 2020
(CNR No.MHCC01-001123-2020
IN
SUIT NO.349 OF 2019.
(CNR No.MHCC01-000894-2019)
Suman Avinash Sonawane and Ors. }...APPLICANTS.
IN THE MATTER BETWEEN
Ashok Tukaram Sonawane and Ors. }...PLAINTIFFS.
VERSUS
Ramesh Tulkaram Sonawane and Ors. }...DEFENDANTS.
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Shri.Abhijeet Samant, learned advocate for the applicants.
Shri.Viral Shah, learned advocate for the defendant No.1.
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CORAM : HIS HONOUR JUDGE SHRI.P.P.RAJVAIDYA (C.R.No.62)
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O R A L O R D E R
(Delivered on 11/10/2021)
1. By filing this Chamber Summons, applicants have claimed
reliefs as under.
a. That due to the demise of Plaintiff No.2 on 05.09.2019 the
names of his legal heirs and representatives, Mrs. Suman Avinash
Sonawane(wife), Mr.Mayur Avinash Sonawane(son) and Mrs.
Shital Sunil Deshbharatkar(daughter) be taken on record.
b. That the applicants be allowed to amend the plaint and
add the names of the legal heirs as per the details laid out in the
Schedule against the name of plaintiff No.2.
2. Read the affidavit filed in support of Chamber Summons
and affidavit in reply filed by defendant No.1. Heard learned Shri.
Abhijeet Samant advocate for the applicants and learned Shri.Shah
advocate for the defendant No.1. Perused the entire record.
3. Learned advocate for the applicants submitted that
applicants are the only heirs and legal representatives of deceased
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plaintiff No.2, Chamber Summons is taken out within prescribed period
of 90 days prescribed by Limitation Act and hence, Chamber Summons
may be made absolute.
4. As against this, learned advocate for defendant No.1
submitted that Chamber Summons is not taken out within stipulated
period of 90 days after the death of plaintiff No.2, date of lodging has to
be considered while computing the period of limitation and Chamber
Summons is registered after a delay of 419 days due to which, it is
hopelessly barred by limitation yet there is no prayer for condonation of
delay. He argued that suit is already abated so far as deceased plaintiff
No.2 is concerned and hence, Chamber Summons is liable to be
dismissed. In support of his argument, learned advocate for defendant
No.1 has placed reliance on following authorities.
i)
Oral order dtd.10/08/2002 of
Hon’ble Bombay High Court in
Summons for Judgment No.483 of 2010 in
Summary Suit
No.1004 of 2009 (Shree Ganesh Chemicals Vs. M/s. Virdev
Intermediates Private Limited),
ii)
Rhoda Vs. Homi reported in
AIR 1989 Bom. 359,
iii)
John Vergese Vs. Gracy Vergese reported in
2006(5)Bom.C.R.190,
iv)
Jagdish Vs. Keki reported in
2002(3) Bom.C.R. 579.
I have gone through those authorities.
5. Contention raised by the applicants in the affidavit filed in
support of the Chamber Summons about causing death of plaintiff No.2
Avinash on 05/09/2019 is supported by the copy of death certificate
produced with Chamber Summons. There is substance in the argument
of learned advocate for defendant No.1 that applicants have not made
prayer to condone the delay. The question for consideration is whether
there is a delay in taking out the Chamber Summons ?
6.
Roznama shows that draft Chamber Summons alongwith
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affidavit in support was tendered in the court on 02/12/2019. Plaintiff
No.2 expired on 05/09/2019. Apparently, draft Chamber Summons is
tendered in the court within 90 days after death of plaintiff No.2. It
does not appear to be in dispute that after granting leave on 2/12/2019
to register the Chamber Summons, next date in the matter was given as
28/01/2020 for service of Chamber Summons. It appears that Chamber
Summons was received by advocate for the plaintiffs/applicants for
registration purposes on 28/1/2020 and next date in the matter was
fixed as 17/03/2020 on which date, matter was adjourned in view of
the Circular issued by Hon’ble Principal Judge in respect of Corona
Virus. Thereafter, matter was adjourned from time to time due to Covid-
19 Pandemic. Said registered Chamber Summons is tendered in the
court on 25/03/2021. Endorsement of the office shows that it was got
registered on 29/01/2020. Apparently, there is no delay in getting the
Chamber Summons registered after it was handed over to the advocate
for the applicants for registration purposes.
7. In a case of
Rhoda Vs. Homi cited above on which reliance
is placed by learned advocate for defendant No.1, it is observed that
there is no difference between “lodging” of a plaint and ‘admitting’ a
suit in so far as it has any relation to the powers of the court. As
mentioned earlier, draft Chamber Summons was not only tendered in
the court on 02/12/2019 but leave also was obtained to register it
which means that Chamber Summons is taken out within 90 days from
the date of death of plaintiff No.2 and hence, this court is of the opinion
that Chamber Summons taken out well within limitation.
8. It is not the contention of defendant No.1 that cause of
action is not surviving after death of plaintiff No.1. Defendant No.1 has
not disputed that applicants are the only heirs and legal representatives
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of deceased plaintiff No.2 hence, Chamber Summons deserves to be
allowed. Thus, an order.
O R D E R
Chamber Summons No.167 of 2020 is allowed in terms of
its prayer clause ‘a’ and ‘b’.
Amendment as per the Schedule be carried out within two
weeks from today.
Date : 11/10/2021. (P.P.RAJVAIDYA)
Dictated on : 11/10/2021. Judge, C.R.No.62,
Checked on : 11/10/2021. City Civil Court,
Signed on : 11/10/2021. Mumbai.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
14.10.2021 at 3.00 p.m. Mrs.Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. P.P.RAJVAIDYA
(C.R.No.62)
Date of pronouncement of Order 11/10/2021.
Order signed by P.O. on 11/10/2021.
Order uploaded on 14/10/2021.
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