Final Order 1

Order Details: Chamber summons
Pdf Text: CNR No. MHCC010013162018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO.167 OF 2018
IN
SUIT NO.8190 OF 2002
Ketan Narendra Fadia & ors. ...Plaintiffs.
V/s.
Kaniyalal Yashwantrai Fadia & ors. ...Defendants.
And
Mrs.Kajal Munjal Mehta & Anr. ...Respondents.
Appearances:
Ld. Adv.Ms.Neha Soni for plaintiffs
Ld. Adv.Ms.Pallavi Desai 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 plaintiffs prayed for carrying
out amendment in the plaint by condonation of delay.
2. In supporting affidavit of Ketan Fadia submitted that, original
plaintiff filed this suit against defendants for declaration of ownership
of suit flat and cancellation of certain documents in respect of suit flat.
During the pendency of the suit defendant No.1 Kaniyalal Fadia expired
on 28.11.2017 at Pune and therefore, respondents are the only
surviving legal heirs of defendant No.1. Therefore, he prayed that, they
be added in the array of defendants as legal heirs of deceased
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CS 167/2018 .. 2 .. Suit No.8190/2002
defendant No.1 and necessary amendments in the plaint to that effect
be permitted.
3. After service of chamber summons, defendants appeared and
filed their formal objection to the chamber summons. They submitted
that, in the suit bearing No.6926 of 2003 also they have seeking
amendment for addition of legal heirs of defendant No.1 Kaniyalal
Fadia and therefore, they have formerly objected this chamber
summons.
4. Heard learned Advocate for Ms.Neha Soni for plaintiffs and
learned Advocate Ms.Pallavi Desai for defendants. Perused the
submissions and supporting affidavit on record.
5. As per death certificate issued by Municipal Corporation of Pune,
defendant No.1 Kaniyalal Fadia reported expired on 28.11.2017. The
chamber summons came to be lodged on 24.01.2018. It is quite within
limitation. No other surviving legal heirs of defendant No.1 appear.
The power of attorney filed by defendant No.1 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, respondents need to be impleaded as legal heirs of
defendant No.1 in array of plaint suit. Hence, to that effect necessary
amendments in the title clause of the plaint and paragraph No.1(b) 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.
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CS 167/2018 .. 3 .. Suit No.8190/2002
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 :
O R D E R
1. Chamber Summons No.167 of 2018 in Suit No.8190 of
2002 is made absolute.
2. Plaintiffs 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/
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CS 167/2018 .. 4 .. Suit No.8190/2002
“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
05.06.2018 at 10.48 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
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