Final Order 1

Order Details: Chamber summons
Pdf Text: 1 Order in Ch/s 193/2020 in Suit 9551/93
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO. 193 OF 2020
IN
SUIT NO. 9551 OF 1993
(HIGH COURT SUIT NO. 4007 OF 1993)
CNR NO. : MHCC010013732020
Bhimchhya Cooperative Housing
Society Ltd. & Ors. …. Plaintiffs
Versus
M/s. F.K. Construction & Ors. ….Defendants
Appearance:
Adv. Smt. Prachi Khandelwal for plaintiffs.
Advs. Shri. Udaya Sankar Samudrala along with Shri. Somnath Pandey
for defendant nos. 3,4,6,9,11 &17 to 23.
Adv. Smt. Pushpa Thapa for defendant no. 25.
CORAM : SMT. S.S. NAGUR,
JUDGE, (C.R.NO.04)
DATE : 01.12.2021
ORAL ORDER
(Dictated in open Court)
The Chamber Summons is filed by the plaintiffs to exempt
the plaintiff from brining legal heirs of defendant no. 20 and 22 in
accordance with Order XXII Rule 4 of Code of Civil Procedure and pass
Judgment against these defendants.
2. The Chamber Summons is supported by Affidavit of Rajan
Kamble, Chairman of the plaintiff society. The plaintiff stated that the
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defendant no. 1 & 2 filed their Written Statement on 12.08.1998, the
defendant no. 3, 4, 9 to 14 filed their Written Statement on 03.12.1998
and the defendant no. 23 & 24 have filed their Written Statement. The
defendant no. 20 and 22 did not file their Written Statement. Therefore,
on their death, it is not necessary for the plaintiff to bring on record
their legal heirs. Hence, prayed to allow the Chamber Summons.
3. The reply is not filed to the Chamber Summons by the
other defendants.
4. Heard Advocate Smt.Prachi Khandelwal for plaintiffs,
Advocate Shri. Udaya Sankar Samudrala along with Shri. Somnath
Pandey for defendant nos. 3,4,6,9,11 &17 to 23 and Advocate
Smt.Pushpa Thapa for defendant no. 25.
5. The plaintiff is seeking exemption under Order XXII Rule 4
of Code of Civil Procedure. The Order XXII Rule 4 of Code of Civil
Procedure provides that,
“4. Procedure in case of death of one of several defendants or of
sole defendant (1)Where one of two or more defendants dies and
the right to sue does not survive against the surviving defendant or
defendants alone, or a sole defendant or sole surviving defendant dies
and the right to sue survives, the Court, on an application in that
behalf, shall cause the legal representatives of the deceased defendant
to be made a party and shall proceed with the suit.
(2) Any person so made a party may make any defence appropriate to
his character as legal representative of the deceased defendant.
(3) Where within the time limited by law no application is made
under subrule (1) the suit shall abate as against the deceased
defendant.
(4) 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 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
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defendant not withstanding the death of such defendant and shall
have the same force and effect as if it has been pronounced before
death took place.
(5) Where
(a) the plaintiff was ignorant of the death of a defendant, and could
not, for that reason, make an application for the substitution of the
legal representative of the defendant under this rule within the period
specified in the Limitation Act, 1963 (36 of 1963) and the suit has, in
consequence, abated, and
(b) the plaintiff applies after the expiry of the period specified
therefor in the Limitation Act, 1963 (36 of 1963), for setting aside the
abatement and also for the admission of that application under
section 5 of that Act on the ground that he had, by reason of such
ignorance, sufficient cause for not making the application within the
period specified in the said Act,
the Court shall, in considering the application under the said section
5, have due regard to the fact of such ignorance, if proved.
The sub rule (4) is relied by the plaintiff to claim
exemption to bring on record the legal heirs of defendant no. 20 & 22.
6. On perusal of the record, the suit is for plaintiff's evidence.
The plaintiff has filed the evidence Affidavit. The documents are not yet
marked as exhibits. Initially the plaintiff filed suit against defendant no.
1 to 17. The defendant no. 18 to 24 are impleaded during the pendancy
of the suit. The plaintiff is seeking permanent injunction against the
defendant no. 3 to 24 from dealing with, disposing off, parting with
possession or induction anyone else at the instance of defendant no. 1 &
2 in the said flats.
7. The suit is filed by the plaintiffs against the defendant no. 1
& 2 that they have no right, title and interest in respect of the suit
property and declare that the defendant no. 3 to 17 are rank
trespassers. On perusal of roznama, defendant no. 20 & 22 appeared
through Advocate Shri.Udaya Sankar/Advocate Shri.Pandey. Advocate
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Shri. Pandey for the defendant informed about the death of defendant
no. 20 and 22 on 15.02.2019 as noted in that roznama.
8. The present Chamber Summons is filed by the plaintiff on
31.01.2020. The suit is already abated against the defendant no. 20 and
22, after completion of 120 days from the date of the above
information. Advocate Anupama Kolekar for plaintiff was present when
the statement was made by Advocate Pandey for the defendant. As per
order passed in roznama dated 11.07.2019, “No steps taken in
relation to bringing legal representatives of defendant no. 9, 11, 20
and 22. Therefore, matter to proceeded further.”
9. As the suit is abated the against defendant no. 20 and 22,
the Chamber Summons filed by the plaintiff is not tenable. Hence, pass
following order :
ORDER
1. The Chamber Summons is rejected.
2. Accordingly, the Chamber Summons is disposed of.
(SMT.S.S.Nagur)
Date :01/12/2021 Judge
City Civil Court,
Greater Mumbai.
Pronounced on : 01.12.2021
Dictated on : 01.12.2021
Typed on : 04.12.2021
Checked & Signed on : 06.12.2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
07/12/2021 11.10 a.m. Prachi Y. Potdar
Stenographer – Grade I
Name of the Judge HHJ Smt. S.S. Nagur
(C.R.NO.4)
Date of Pronouncement of
Judgment/Order.
01/12/2021
Judgment/order signed by P.O on 06/12/2021
Judgment/order uploaded on 07/12/2021
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