Final Order 1

Order Details: Chamber summons
Pdf Text: ORDER ..1.. CS NO. 298/2020
MHCC010019212020
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
CHAMBER SUMMONS NO. 298 OF 2020
IN
L.C. SUIT NO.1849 OF 2010
M/s. Kamlesh Automobiles & Steel Fabricators … Plaintiff.
Versus
Dinesh Amritlal Panchal & Another . … Defendants.
And
Mrs. Maria Britto and Others. …Respondents / Proposed Defendants.
Appearance
Adv. Parikshit Paniya for the plaintiff.
Adv. Nitesh Pande for proposed defendants.
CORAM : HIS HONOUR JUDGE
Sunil T. Soor.
(COURT No.: 2)
DATED : 16th March 2022.
ORAL ORDER
Heard advocate for both parties on chamber summons moved on
behalf of the plaintiff for condonation of delay in bringing legal heir of
defendant no.2 on the record and for consequential amendment in the
plaint.
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2. Defendant no. 1 and legal heirs of defendant no.2 (proposed
defendant) opposed chamber summons by filing their reply.
3. Contention of the plaintiff is that vide letter dated 09.08.2019,
advocate for defendant no.2 informed to advocate for the plaintiff that
defendant no.2 expired on 29.04.2019 leaving behind (i) Mrs. Maria
Britto -Widow, (ii) Mr. Bonny Britto -Son, (iii) Mrs. Olive Braganza -
Married daughter, (iv) Ms. Nesika Britto -Daughter and (v) Mr. Darryl
Britto – Son as legal heirs of defendant no.2. Chamber summons kept
ready in October 2019. However plaintiff went to his native place and
due to his ill-health i.e, dislocation of his shoulder, he could not come to
Mumbai and as such affidavit in support of chamber summons could not
be affirmed. Hence there is delay in taking out present chamber
summons. Plaintiff came to Mumbai only in the last week of December
2019. Reasons for delay in taking out chamber summons are genuine.
Hence prayed for allowing chamber summons.
4. Defendant no.1 and legal heirs of defendant no.2 stated in their
reply to chamber summons that in spite of receiving letter from
advocate of defendant no.2, plaintiff failed to file chamber summons
within limitation. Hence the suit stands abated against defendant no.2
by operation of law. No relief is sought for setting aside abatement of
the suit against defendant no.2. There is inordinate delay in filing the
chamber summons. Delay is not sufficiently explained by the plaintiff.
Hence they prayed for dismissal of chamber summons.
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5. Perused the proceeding of the case. It is true that on 09.08.2019,
advocate for defendant no.2, who now appeared for legal heirs of
defendant no.2, informed to advocate for plaintiff as per provisions of
Order 22, Rule 10(A) of the Civil Procedure Code (C.P.C.) that
defendant no.2 is expired on 29.04.2019 leaving behind above legal
heirs.
6. Admittedly plaintiff has to take out chamber summons within 90
days for bringing legal heirs of defendant no.2 on record as per Order
22, Rule 4 of the C.P.C. read with Article 120 of the Limitation Act and
thereafter he has to take out notice of motion for setting aside
abatement within 60 days as per Article 121 of the Limitation Act.
Plaintiff tendered present chamber summons on 17.01.2021. Plaintiff in
affidavit in support of notice of motion stated on oath that chamber
summons was kept ready in October 2019 but could not be affirmed as
he went to his native place and due to dislocation of shoulder could not
come to Mumbai. Chamber summons originally bears the date of
03.10.2019 and thereafter it is affirmed on 03.01.2020. Hence it is clear
that present chamber summons was kept ready in the month October
2019. Hence contention of advocate for the plaintiff appears to be
genuine.
7. Suit is for possession of the suit premises i.e. Gala No.14 in
Stable No.6, Kopergaon Estate, Love Lane, Mazgaon, Mumbai 400 010
on the ground that defendants dispossessed the plaintiff from the suit
premises on 27.06.2010. Considering the nature of suit and reliefs
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claims, cause of action survives to the legal heirs of defendant no.2.
Admittedly the fact about dislocation of shoulder of the plaintiff is not
supported with any document but on that count alone, suit cannot be
dismissed or abated against defendant no.2. Defendant no.1 as well as
deceased defendant no.2 filed their written statement on the record.
Hence no prejudice would be caused to legal heirs of defendant no.2 if
chamber summons will be allowed.
8. The Hon'ble Apex Court in
Collector, Land Acquisition V/s. Mst.
Kati Ji [1987 (13) ALR 306 SC] held that the legislature has conferred
the power to condone delay by enacting section 5 of the Limitation Act,
1963 in order to do substantial justice to parties by disposing of matters
on merits. The expression “sufficient cause” employed by the legislation
is adequately elastic to enable the Courts to apply the law in a
meaningful manner with subserves the ends of justice that being the life
purpose of the existence of the institution of Courts. There is no
presumption that delay is occasion deliberately or on account of
culpable negligence or on account of malafides. A litigant does not
stand to benefit by resorting to delay, in fact he runs a serious risk. It
must be grapped that the judiciary is respected not on account of its
power to legalize injustice on technical grounds but because it is
capable of removing injustice and is expected to do so.
In N.
Balakrishnan v/s. M. Krishnamurthi [1998 (7) SCC 123], the Hon'ble
Apex Court explained the scope of limitation and condonation of delay
observing as under :
“The primary function of a Court is to adjudicate the
dispute between the parties and to advance substantial
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ORDER ..5.. CS NO. 298/2020
justice. The time limit fixed for approaching the Court in
different situation is not because on the expiry of such time,
a bad cause would transform into a good cause. Rules of
limitation are not meant to destroy the rights of the parties.
They are meant to see that parties do not resort to dilatory
tactics but seek their remedy for the redress of the legal
injury so suffered. The law of limitation is thus founded on
public policy.”
9. The Hon'ble Apex Court in
Vedabai @ Vaijayantabai Baburao
Patil v/s. Shantaram Baburao Patil [2001(44) ALR 577 SC ] made a
distinction in delay and inordinate delay observing as under :
“ In exercising discretion under section 5 of the Limitation
Act, the Court should adopt a pragmatic approach.”
10. Admittedly there is delay in taking out present chamber
summons by the plaintiff but it cannot be said as inordinate delay. May
be so, defendants can be compensated in terms of money for causing
delay in taking out present notice of motion. For fair trial of the suit,
legal heirs of defendant no.2 needs to be brought on record. Under the
facts, circumstances and in view of the above guiding principles of the
Hon'ble Apex Court, chamber summons is liable to be allowed with
costs. In the result, following order :
ORDER
1. Chamber Summons No.298 of 2020 is allowed with costs of
Rs.10,000/- out of which plaintiff shall pay costs of Rs.5,000/- to
defendant no.1 and Rs.5,000/- to legal heirs of defendant no.2
before next date.
2. After payment of costs, plaintiff to carry out the amendment
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in the plaint within 14 days as per the schedule of chamber
summons.
3. Chamber Summons No.298 of 2020 is disposed of.
(Sunil T. Soor)
Judge
Date : 16.03.2022 City Civil Court, Gr.Mumbai
Typed on : 16.03.2022
HHJ signed on : 16.03.2022
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
DATED 16.03.2022, 5.00 p.m.
UPLOAD DATE AND TIME Mrs. V. N. Rajgole.
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. S. T. Soor
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
16.03.2022
JUDGMENT/ORDER signed by P.O.
on
16.03.2022
JUDGMENT/ORDER uploaded on 16.03.2022
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