Final Order 1

Order Details: Chamber summons
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO.181 OF 2018
IN
CHAMBER SUMMONS NO.918 OF 2004
IN
SUIT NO.6492 OF 1970
The Board of Trustees of the Port of Mumbai ...Plaintiff.
V/s.
M/s. Nuservanji Ruttonji Nazir & sons & ors. ...Defendants.
And
Rahimtullah Ziaullah Khan & ors. ...Obstructionist
And
Kasim Babullah Chaudhary ...Proposed Obstructionist
Appearances:
Ld. Adv.Mr. Ravi Irle for plaintiff.
Ld. Adv.Ms.J.P. Thakkar for obstructionist.
CORAM : HIS HONOUR JUDGE
SHRI ABHIJEET A.
NANDGAONKAR
(C.R.No.20)
DATED : 6th September,2018
ORDER
By way of this chamber summons plaintiff prayed for bringing
legal heirs of obstructionist in the Chamber Summons No.918 of 2004
pending before this Court.
MHCC01-001418-2018
-- 1 of 5 --
CS181/2018 .. 2 .. Suit No.6492/1970
2. By supporting affidavit of Abdul Aziz Mohd. plaintiff submitted
that, they have filed suit against the defendants for eviction and
recovery of vacant and peaceful possession of the suit premises. That
was allowed in their favour. But defendants failed to vacate and
handover the peaceful possession. Therefore, Execution Application
No.675 of 1998 was taken out before this Court. It was allowed . But
when execution was obstructed plaintiff taken out Chamber Summons
No.918 of 2004 for bringing of the said obstructionists under O.XXI
R.97 of C.P.C.
3. Learned counsel for plaintiff submitted that, during the hearing of
the matter learned counsel for obstructionist informed that,
obstructionist No.4 Choudhary Babullah Asalat expired on 24.06.2017
and therefore, they prayed necessary amendments for bringing legal
heirs of obstructionist No.4 on record. Hence, they prayed that,
chamber summons be made absolute as per terms of schedule.
4. After issuing notice of this chamber summons Kasum Babullah
Chaudhary has filed their reply and objected the chamber summons. He
submitted that, application is not maintainable. The obstructionist No.4
expired on 24.06.2017 and there are three legal heirs of the deceased.
Therefore, plaintiff be directed to join other legal heirs of deceased
Babullah Chaudhary the sole proprietor of Diamond Steel, at Shop
No.3, Plot NO.211, (Old Plot NO.1), in Block No.1, Coal Bunder,
Mazgaon Reclamation Estate, Mumbai and to that effect prayed that
chamber summons be disposed of.
5. The rejoinder affidavit of Abdul Aziz Mohd. was also filed on
behalf of plaintiff. He submitted that, they have taken out necessary
-- 2 of 5 --
CS181/2018 .. 3 .. Suit No.6492/1970
chamber summons for taking the legal heirs of obstructionist No.4 on
record as per the information and therefore, if any other legal heirs are
there they be also proposed to be added in the legal heirs of
obstructionist No.4 and prayed that, chamber summons be made
absolute.
6. Heard both the sides at length. Perused the submission and
record.
7. No doubt as per death certificate placed on record the
obstructionist No.4 Babullah Chaudhary expired on 24.06.2017.
Therefore, cause of action of plaintiff against legal heirs and
representatives of obstructionist survives, so also the right to sue. As
per decree of eviction and possession to be executed, there is need of
bringing the legal heirs of obstructionist No.4 on record, as proposed in
the schedule. Their presence is also necessary to put forth their case
and defence, so as to matter needs to be properly adjudicated in view of
the obstruction raised while execution of decree. Therefore, it will be
proper to allow the chamber summons as prayed for addition of legal
heirs of obstructionist No.4 as per schedule in Chamber Summons
No.918 of 2004. Hence, chamber summons needs to be made absolute.
In the circumstances, parties are directed to bear their costs and hence,
I proceed to pass the following order :
O R D E R
1. Chamber Summons No.181 of 2018 to carry out
amendment about insertion of legal heirs of obstructionist
No.4 Chaudhary Babullah Asalat as per schedule attached
to the rejoinder is allowed by condonation of delay.
-- 3 of 5 --
CS181/2018 .. 4 .. Suit No.6492/1970
2. Amendment be carried out in Chamber Summons No.918
of 2004 within 14 days and file amended copy of chamber
summons on record as well as supply amended copies of
chamber summons to proposed obstructionist Nos.4(a) to
4 (c) for calling their say.
3. No order as to costs.
( ABHIJEET A. NANDGAONKAR )
Judge, (C.R.No.20)
Dt.:06/09/2018 City Civil Court, Gr. Mumbai
Dictated on : 06.09.2018
Transcribed on : 06.09.2018
Signed on : 06.09.2018
kps/
-- 4 of 5 --
CS181/2018 .. 5 .. Suit No.6492/1970
“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
06.09.2018 at 5.37 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 06.09.2018
Judgment/order signed by P.O. on 06.09.2018
Judgment/order uploaded on 06.09.2018
-- 5 of 5 --