Final Order 1

Order Details: Chamber summons
Pdf Text: 1 C/S No.180 of 2020
CNR: MHCC01-001264-2020
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
CHAMBER SUMMONS NO.180 OF 2020
S.C. SUIT NO.5090 OF 2007
1 Manisha Ramesh Nazare & Anr. .. Plaintiffs
V/s.
1(a) Smt. Laxmi G. Shetye(Since deceased) & Ors. .. Defendants
Appearances :-
Mr. Mohan A. Dharmaraj, Adv. for Plaintiffs.
Mr. S.P. Srivastava, Adv. for Defendant Nos.2, 3 and 4.
Coram : R. M. Sadrani
Judge, City Civil Court,
Greater Bombay, C.R. No.07.
DATED : 4th February, 2021.
ORDER
1 This Chamber Summons is moved by the plaintiff No.1
through her advocate to allow the plaintiffs to delete the name of
deceased defendant No.1(a) namely Smt. Laxmi G. Shetye.
2 Learned Adv.Mohan Dharmaraj for the plaintiffs
argued that after death of original defendant No.1, her daughters
i.e. defendant No.1(a) and 1(b) were brought on record as her
legal representatives. On 5th December, 2019, learned advocate for
the contesting defendant No.2, 3 and 4 informed the Court that
defendant No.1(a) expired on 12th November 2019 and
accordingly, roznama reflects so. He argued that defendant
No.1(a) has not left behind her any estate of her own with regard
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2 C/S No.180 of 2020
to the subject matter of the present suit. Further, she herself was
on record as legal representative of original defendant No.1,
therefore, there is no question of bringing legal heirs of defendant
No.1(a) on record. He requested to permit the plaintiffs to delete
the name of defendant No.1(a) from the cause title. He further
pointed out that defendant No.1(a) had not filed her written
statement and she proceeded without written statement as
unconstested party.
3 On the contrary, learned advocate for the defendants
stronlgy opposed the Chamber Summons. He argued that
defendants will suffer loss, if legal heirs of deceased defendant
No.1(a) are not brought on record. He argued that right to sue
survives against children of deceased defendant No.1(a). He
requested to dismiss the Chamber summons.
4 After hearing both the sides, I go through record.
Defendant No.1(a) was brought on record as per order passed in
Chamber Order No.1134/2007, as per order dt.26/09/2007. It is
mentioned in that Chamber Summons that in view of death of
defendant No.1, the right of sue survives to the plaintiffs asainst
the daughters of defendant No.1 i.e. defendant No.1(a) and 1(b).
5 I go through Order XXII, Rule 4(4) of Code of Civil
Procedure. It is reproduced as under for ready reference.
“The Court whenever it thinks fit, may exempt the plaintiff
from the necessity of substituting the legal representatives of
any such defendant who has failed to file a written statement
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3 C/S No.180 of 2020
or who, having filed it, has failed to appear and contest the
suit at the hearing; and judgment may, in such case, be
pronounced against the said defendant notwithstanding the
death of such defendant and shall have the same force and
effect as if it has been pronounced before death took place.”
6 In view of above provision as in the present matter,
defendant No.1(a) had not filed her written sttaement, therefore,
plaintiffs are required to be exempted from bringing legal
representatives of defendant No.1(a) on record instead of granting
permission to delete defendant No.1(a). Considering the above
facts and circumstances and legal aspects, I pass following order.
ORDER
1 Chamber Summons No.180 of 2020 is hereby partly
allowed.
2 Plaintiffs are exempted from bringing legal heirs of
defendant No.1(a) within the meaning of Order XXII, Rule 4(4)
of Code of Civil Procedure.
3 Chamber Summons is disposed off accordingly.
(R. M. Sadrani)
Judge,
City Civil and Sessions Court,
Dated : 04/02/2021. Greater Bombay.
Dictated on :04/02/2021.
Transcribed on :04/02/2021.
Signed on :05/02/2021.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.
UPLOADED ON: 05/02/2021.
(Santosh B. Sawant)
(Selection Grade Stenographer)
Name of the Judge(with Court Room
No.)
Shri. R. M. Sadrani, Judge, C.R.No.07.
Date of pronouncement of
Judgment /Order
04/02/2021.
Judgment/Order signed by P.O. on 05/02/2021.
Judgment/Order uploaded on 05/02/2021.
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