Final Order 1

Order Details: Chamber summons
Pdf Text: .1. CH/S No. 175/2020 in
CNR NO. MHCC010012302020. L.C. Suit No.172/2011.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
CHAMBER SUMMONS NO. 175 OF 2020.
IN
L.C. SUIT NO. 172 OF 2011.
Shripati Gundu Naik and Another. ….......……..... …... Plaintiffs.
V/s.
Bhagwan Kedarnath Mishra and the Other. …..... …... Defendants.
CORAM : Shri. A.G. Santani.
(Court Room No.11).
DATED : 16th March, 2022.
APPEARANCES :
Mr. S.K. Dubey, the Ld. Advocate for the plaintiffs.
Mr. R.P. Oza, the Ld. Advocate for Defendant No.1.
Mr. Sunil Khandagale, the Ld. Advocate for Defendant No.6/MCGM.
*****
01. The plaintiffs have taken out this Chamber Summons for
condonation of delay, in bringing the L.Rs. Of deceased defendant No.1,
and also for the permission to amend the plaint in view of the Schedule.
Perused the Chamber Summons, along-with affidavit, and the say filed
by the defendants.
02. Considering the record, the points for determination, along-
with my findings and the reasons therefor, are as under :
Sr. No. POINTS FINDINGS
(i). Whether the legal representatives of
late deceased No.1 are required to be
substituted on the record ?................... ... Yes.
(ii). What Order ?..............…...................... … As per final Order.
REASONS FOR FINDINGS
-- 1 of 4 --
.2. CH/S No. 175/2020 in
CNR NO. MHCC010012302020. L.C. Suit No.172/2011.
AS TO POINT NO. 1:
03. By filing the Chamber Summons, the plaintiffs' only anxiety
is to bring on record that defendant No. 1 died on 25.05.2019, leaving
behind his L.Rs. as per the Schedule. Plaintiff No.1, in view of affidavit
filed with this Chamber Summons, submitted that in view of the letter
dt. 29.07.2019, he came to know about his demise. However, this letter
was misplaced and hence, advocate of defendant No.1 was requested to
furnish copy of the said letter, which the plaintiffs' advocate received on
18.10.2019. In the meantime, even he was hospitalized at Ghatkopar
from 14.08.2019 till 20.10.2019. After he started attending his affairs,
he filed his Chamber Summons. However, there is delay in bringing the
L.Rs. on record. It was not intentional and hence, it may be condoned.
The defendants objected the Chamber Summons on the ground that the
plaintiffs were negligent to file this Chamber Summons and therefore, it
needs to be dismissed with costs.
04. Having considered the rival submissions, here, it is worth to
be noted that the plaintiffs supported this Chamber Summons by filing
the affidavit. It revels that though defendant No. 1 died on 25.05.2019,
finally on 18.10.2019, they were in receipt of the said letter and again,
there was some medical issue with plaintiff No. 1. In the circumstances,
the delay, in filing of this Chamber Summons, is satisfactorily justified.
That apart, there is no inordinate delay, as is defined under Articles 120
121 of the Limitation Act, 1963.
05. Here, it would be pertinent to note that by filing this suit,
the plaintiffs came with the specific case that defendant No.1 occupied
illegal and unauthorized commercial structure. On this background, the
suit shows that they claimed certain reliefs against this defendant. True
-- 2 of 4 --
.3. CH/S No. 175/2020 in
CNR NO. MHCC010012302020. L.C. Suit No.172/2011.
it is that in this matter, the issues are framed and the evidence is going
to be recorded. However, the fact remained that even after the death of
defendant No.1, right to sue him still survives in favour of the plaintiffs.
At the same time, as I mentioned earlier, the plaintiffs could justify their
delay in preferring this Chamber Summons. Needless to say that there
are triable issues in between the parties and therefore, it would be just
and appropriate to adjudicate upon the same on merit. Even otherwise,
the L.Rs. of late defendant No.1 would be necessary parties for this suit.
In the circumstances, I am of the opinion that this Chamber Summons is
to be allowed in view of prayer Clauses (a) to (d.) Hence, I answered
point No.1 in the affirmative and in the answer to point No.3, I pass the
following Order :
-: O R D E R :-
(i). Chamber Summons No. 175/2020 is made absolute in
terms of prayer Clause (a) to (d).
(ii). The plaintiffs are directed to carry out the amendment /
substitution by bringing L.Rs. late defendant No.1 on the
record, positively within two weeks from passing of this
order.
(iii). The plaintiffs are further directed to supply the amended
copy of plaint on the defendants within one week
therefrom and to take suitable steps to ensure presence
of newly added defendants.
(iv). Chamber summons No. 175/2020, accordingly, stands
disposed off.
Sd/-
{A.G. Santani}
Mumbai. Ad-hoc Judge,
Dated : 16.03.2022. City Civil Court, Mumbai.
Dictated on : 16.03.2022.
Transcribed on : 16.03.2022.
Signed on : 17.03.2022.
-- 3 of 4 --
.4. CH/S No. 175/2020 in
CNR NO. MHCC010012302020. L.C. Suit No.172/2011.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT /ORDER”
On 19.03.2022at 3.30 p.m. Mr. R.A.Dalvi- Typist
UPLOADED DATE AND TIME
Name of the Judge (with Court Room no.) H.H.J. A.G. Santani
C.R. No.11
Date of Pronouncement of
Judgment/Order
16.03.2022.
Judgment /Order signed by P.O. on 17.03.2022.
Judgment/Order uploaded on 19.03.2022.
-- 4 of 4 --