Final Order 1

Order Details: Chamber summons
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO.178 OF 2018
IN
SUIT NO.2679 OF 2012
(HIGH COURT SUIT NO.298 OF 2012)
M/s. K. Mahadeo & Co. Pvt. Ltd. ...Plaintiff
V/s.
Dwarkabai Ramchandra Kini & Ors. ...Defendants.
And
1.Yashoda Ramesh Bhoir
2. Neelam Nandkumar Patil
3. Lakshumi Rajesh Bhoir
4. Mali Kishor Bhoi ...Respondents/
{proposed defendant Nos.45 (a) to 45(d)}
Appearances:
Ld. Adv.Mr.Pradeep Kadam for plaintiff.
Ld. Adv.Mr.Babu for defendant Nos.1 to 5 and 11 to 23.
Ld. Adv.Mr.Saleem Shaikh for defendant Nos.74 to 79.
CORAM : HIS HONOUR JUDGE
SHRI ABHIJEET A.
NANDGAONKAR
(C.R.No.20)
DATED : 20th August,2018
ORDER
By way of this chamber summons plaintiff prayed for bringing
legal heirs of deceased defendant No.45 on record by condonation of
delay.
2. In supporting affidavit plaintiff submitted that, defendant No.45
was reported expired on 12.10.2016. The said fact was informed by
learned Advocate of defendant No.45 to the Court on 05.01.2017 and
MHCC01-001411-2018
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CS 178/2018 .. 2 .. Suit No.2679/2012
uptill that date plaintiff was not aware about the said fact. After getting
information of death of defendant No.45 plaintiff prepared chamber
summons, however, due to inadvertence it could not be filed. Plaintiff
submitted that, after instructions of learned Advocate that, chamber
summons was not been filed, immediately plaintiff filed the present
chamber summons. But in the process delay of 250 has been caused.
The said delay is not intentional but caused due to inadvertence.
Plaintiff submitted that, if delay is not condoned the prejudice will be
caused to plaintiff. After death of defendant No.45 legal heirs of
defendant No.45 is required to be brought on record. If chamber
summons is allowed no prejudice would be caused to defendants.
Therefore, plaintiff prayed that legal heirs of defendant No.45 be add in
the array of defendants.
3. After service of this chamber summons, defendant Nos.1 to 52,
defendant Nos.11 to 23 and defendant Nos.74 to 79 submitted their
reply on overleaf of the chamber summons. They have objected the
chamber summons by submitting that there was explanation of delay or
any supporting affidavit, as suit was already abated. Therefore, they
prayed that chamber summons be dismissed.
4. Heard learned Advocates for the respective parties. Perused the
chamber summons along with documents placed on record.
5. From the document placed on record it reveals that, defendant
No.45 expired on 12.10.2016. However, plaintiff has not got the
information and came to the knowledge about death of defendant
No.45 when learned Advocate for defendant NO.45 informed the Court
on 05.01.2017 the fact of demise of defendant No.45. As per
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CS 178/2018 .. 3 .. Suit No.2679/2012
submission of plaintiff, their Advocate has instructed them to file
chamber summons for bringing legal heirs of deceased defendant No.45
on record. But due to inadvertence they could not file chamber
summons within prescribed period. The reason mentioned is just and
proper to condone the delay. Considering the nature of the suit
between builder and the parties, if plaintiff is permitted to bring legal
heirs of deceased on record; they will be having an opportunity to put
forth their defence to rebut the claim of plaintiff whatever raised by
plaintiff. In such circumstances, delay in bringing legal heirs of
deceased defendant No.45 needs to be condoned and plaintiff be
permitted to carry out necessary amendments to add proposed
defendant Nos.45 (a) to 45 (d) in the array of defendants for proper
adjudication of the matter. It will not change the nature of the suit nor
cause prejudice to the other side or cause irreparable loss to the parties.
But to determine the real questions of controversies involved between
the parties the proposed amendment is necessary. The question of bar
of commencement of trial or limitation does not arise. Due diligence is
shown. If proposed amendment is allowed and legal heirs of deceased
defendant No.45 bring on record it will subserve the ends of justice.
6. In such circumstances, chamber summons needs to be allowed. It
will be proper to direct the parties to bear their costs. Hence, I proceed
to pass the following order :
O R D E R
1. Chamber Summons No.178 of 2018 in Suit No. 2679 of
2012 is made absolute in terms of prayer clause (a), (b)
and (c).
2. The abatement order against defendant No.45 is set aside.
3. Delay in filing chamber summons is condoned and thereby
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plaintiff is permitted to carry out amendment as per
schedule to add legal heirs of deceased defendant Nos.45
in the array of defendants.
4. Plaintiff to carry out the amendments within two weeks
from the date of order and placed amended copy of plaint
on record as well as supply amended copy of plaint to
defendants and proposed defendants.
5. After compliance of above order, plaintiff to issue writ of
summons to defendant Nos.45 (a) to 45 (d) with and filed
service affidavit to that effect.
6. Parties to bear their costs.
( ABHIJEET A. NANDGAONKAR )
Judge, (C.R.No.20)
Dt.:20/08/2018 City Civil Court, Gr. Mumbai
Dictated on : 20.08.2018
Transcribed on : 21.08.2018
Signed on : 21.08.2018
kps/
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CS 178/2018 .. 5 .. Suit No.2679/2012
“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
21.08.2018 at 5.51 p.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 20.08.2018
Judgment/order signed by P.O. on 21.08.2018
Judgment/order uploaded on 21.08.2018
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