Final Order 1

Order Details: Chamber summons
Pdf Text: 1 Ch/sum. no.442-19; In Suit no.8176 of 1994
(High Ct. Suit no.842 -94)
MHCC010022482020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO. 442 OF 2019
(HIGH COURT CHAMBER SUMM. NO.747 OF 2010)
IN
SUIT NO.8176 of 1994
IN
(HIGH COURT SUIT NO.842 OF 1994)
Tardeo Properties Private Ltd. …...Plaintiff
Vs.
Suvarna Amrut Cooperative Housing Society Ltd.,
and Others. ....Defendants.
AND
Prabhavati Maruti Sawant & Ors. ...Respondents
CORAM : HIS HONOUR JUDGE
SHRI VIRENDRA D. KEDAR
(COURT ROOM NO.01)
DATE : 8th DAY OF SEPTEMBER, 2022
: Appearances:
Learned Adv. Shri Thorat for the plaintiff
Learned Adv. Priti Bane for defendant no.1
-- 1 of 9 --
2 Ch/sum. no.442-19; In Suit no.8176 of 1994
(High Ct. Suit no.842 -94)
ORAL ORDER
By the present chamber summons, the plaintiff sought reliefs
interalia that, abatement of the suit against defendants no.2,4,7 9 and
10 if any, be set aside; delay in taking out the chamber summons be
condoned; the plaintiff be allowed to amend the plaint and proceeding
as per the schedule annexed thereto; order, if any, disposing chamber
summons no. 345/1996 be recalled and said chamber summons be taken
on file and for other reliefs.
2. In short, it is contention of the plaintiff that, the advocate
for defendant no.2, by his letter dated 21.02.2008 informed the advocate
for the plaintiff that, the defendant no.2 had expired on 01.12.2006 and
also furnished names and addresses of the legal heirs of the deceased
defendant no.2. Thus the plaintiff wants to bring legal heirs of deceased
defendant no.2 on record.
3. It is further contention of the plaintiff that, he believed that
the defendant no.4 has expired and thus he wants to bring legal
representatives of the deceased defendant no.4 on record.
4. It is further contention of the plaintiff that, originally the
suit was filed against defendant no.8 in the name of Smt. Tarabai Amin
Shantilal Parmar, both of whom are separate individuals and thus ought
to have been shown as defendant no.8a and 8b. Hence amendment to
that effect be permitted to carry out.
5. It is further contention of the plaintiff that, he believed that
original defendants no.7,9, and 10 have expired. Therefore the plaintiff
wants to bring legal heirs of defendants no. 7,9, and10 on record. It is
further contended by the plaintiff that, the defendant no.9 has expired
on 31.12.1993. The plaintiff has also sought further amendment in the
-- 2 of 9 --
3 Ch/sum. no.442-19; In Suit no.8176 of 1994
(High Ct. Suit no.842 -94)
plaint which is annexed with schedule. Hence the present chamber
summons.
6. Defendant no.1 strongly opposed the chamber summons by
filing affidavit on reply. It is contended that, the chamber summons has
been taken out at the belated stage and intentionally delayed on the part
of the plaintiff. The plaintiff has not explained or have not given
sufficient cause for condoning delay. Already the plaintiff has taken out
chamber summons no. 345/1996 for bringing LR's of defendants no. 4, 9
and 10 on record, which was dismissed for default and attained finality
as the plaintiff has not taken any steps to restore the said chamber
summons.
7. It is further submitted by the defendant that, at the time of
institution of the suit itself defendants no. 4,7,9, and 10 were not alive.
The plaintiff instead of knowing this fact did not take steps to bring legal
representatives of said defendants on record. Hence the chamber
summons taken out by the plaintiff at belated stage is not maintainable.
It is further contended that, the defendant no.2 died after filing of the
suit, which intimation was duly given to the plaintiff. However, the
plaintiff failed to take steps for two years. No sufficient explanation
provided by the plaintiff for the same. Hence it needs to be rejected.
8. The plaintiff has filed rejoinder to the reply of the defendant
and denied all the adverse allegation. It is contended that, till filing of
the suit in the year 1996, the plaintiff was not aware of deaths of
defendants no. 4,7,9 and 10, hence question of bringing their LR's on
record does not arise. It is further contended that, though there was
earlier chamber summons no. 345/1996 taken out by the plaintiff for
bringing legal representatives of defendants, but no orders were found
-- 3 of 9 --
4 Ch/sum. no.442-19; In Suit no.8176 of 1994
(High Ct. Suit no.842 -94)
on the record of the proceedings. Thus, it may presumed that the
chamber summons might have been dismissed for default. As such the
present chamber summons has taken out to set aside order of abatement.
9. Defendant no.1 has filed surrejoinder on affidavit and
strongly opposed the chamber summons and rejoinder filed by the
plaintiff.
10. Heard the learned advocate for the plaintiff and defendant
no.1 at length. The learned advocate for defendant no.1 has filed written
notes of argument. Perused the record.
11 Following points arise for my determination to which I
record my findings with reasons as follows:
Sr.
No.
Points Determination.
1. Whether the plaintiff is entitled for the relief
claimed in chamber summons no. 442/2019
(old ch/sum. no. 747/2010)?
Partly Yes
2. What order? As per final
order
REASONS
As to point no.1:
12. The plaintiff has filed the suit for specific performance of
agreement dated 31st March, 1982 and for other reliefs. It is argued by
the learned advocate for the plaintiff that, during pendency of the suit,
the plaintiff came to know that original defendants no. 2,4,7, 9 and 10
have expired. Despite of making inquiry of the legal heirs of the deceased
defendants no. 4,7, and 10 neither death certificate nor date of death of
said defendants was disclosed to the plaintiff. Thus after obtaining the
-- 4 of 9 --
5 Ch/sum. no.442-19; In Suit no.8176 of 1994
(High Ct. Suit no.842 -94)
name of some of legal heirs of the original defendants no. 4,9 and 10,
the plaintiff has filed chamber summons no. 345/1996 for bringing the
legal heirs of defendants no. 4, 9 and 10 on record. However, the
previous learned advocate for the plaintiff has not handle the matter
properly and thus the plaintiff has changed the advocate. Upon taking
search of the paper he learnt that in the said chamber summons no order
was passed. Therefore the plaintiff bonafide believe that the said
chamber summons was dismissed in default. Hence in the present
chamber summons the plaintiff prayed to recall order, if any, disposing
of chamber summons no. 345/1996 and to take it on file.
13, It is further argued that vide letter dated 21.02.2008, it was
informed to the advocate for the plaintiff by the learned advocate for
defendant no.2 that, the defendant no.2 has expired on 01.12.2006.
Hence it is necessary to bring his LR's on record. Thus the present
chamber summons needs to be allowed for bringing LR's of deceased
defendants no. 2, 4, 7, 9 and 10.
14, It is also argued that, due to typographical mistake
defendants Smt.Tarabai Amin and Shantilal Parmar are referred as single
persons and shown as defendant no.8. However, they are two different
persons. Hence it needs to be corrected by showing them as defendant
no.8a and 8b in the clause title. The learned advocate for the plaintiff
also prayed for carrying out other amendment.
15. Per contra, the learned advocate for defendant no.1 strongly
opposed the chamber summons. It is argued that, prior to filing of suit
itself defendants no. 4,7,9 and 10 died. This fact is very well known to
the plaintiff and hence he has taken out chamber summons no. 345 of
1996. However it was dismissed in default. The plaintiff has not taken
-- 5 of 9 --
6 Ch/sum. no.442-19; In Suit no.8176 of 1994
(High Ct. Suit no.842 -94)
any steps to restore the said chamber summons. It is argued that in the
year 2008 itself defendant no.2's advocate has informed about the death
of defendant no.2 to the learned advocate for the plaintiff. Inspite of it
the chamber summons is taken out in the year 2010 without giving
proper explanation for the same. Hence, the chamber summons is liable
to be rejected.
16. In support of his argument, the learned advocate for
defendant no.1 relied on the authorities reported in the case of Katari
Suryanarayana & Ors. Vs. Koppisetti Subba Rao & Ors. 2009(3) ALL
MR 474; wherein the Hon'ble Supreme Court held that “ when the
parties are knowing each other then ignorance of legal consequence without
something more would, be not sufficient to condone such a huge delay. If no
sufficient cause has been shown for the purpose of condonation of delay in
bringing on record the names of the heirs or legal representatives of the
deceased then it needs to be rejected”.
In the case of Union of India Vs. Ram Charan & Others;
1964 AIR 215; the Hon'ble Supreme Court held that “the applicant had
to allege and establish facts which, in the view of the Court, to show
sufficient reasons for his not making the application for bringing on record,
the legal representatives of the deceased within time”
17. Now it is to be seen that, the plaintiff has filed the suit in
the year 1994 for seeking of the relief of specific performance against
defendant nos.1 to 10. It reveals that, the plaintiff has taken out
chamber summons no. 345/1996 for bringing legal heirs and legal
representatives of defendant no.4,7,9 and 10 on record. However as the
defendant failed to proceed with said chamber summons, it was
dismissed in default. The plaintiff did not take any steps to restore the
-- 6 of 9 --
7 Ch/sum. no.442-19; In Suit no.8176 of 1994
(High Ct. Suit no.842 -94)
same. Now in the year 2010 again the plaintiff has filed the present
chamber summons for bringing the legal heirs of defendants no. 2,4,7,9
and 10 with prayer for setting aside abatement, if any, for condoning the
delay and to restore chamber summons no. 345/1996.
18. It is contention of the plaintiff that, the learned advocate for
defendant no.2 had also furnished the information, in the year 2008
itself about the death of the defendant no.2 with names and addresses of
the legal heirs of defendant no.2. Inspite of it, the plaintiff has taken out
the present chamber summon in the year 2010. The plaintiff has not
given proper explanation as to why the application/ chamber summons
has not filed within time, even after the knowledge of death of defendant
no.2 on 21.02.2008. The entire conduct of the plaintiff shown that he is
not vigilant in proceeding with the matter. It is well settled that law
helps to them who are vigilant and not to those who are digilant in
proceeding with the matter. In view of ratio laid down by the Hon'ble
Supreme Court in the above cited authorities, it is for the plaintiff to
show the sufficient cause by which he was prevented to take steps for
bringing the legal representatives or legal heirs of the deceased on
record. It reveals that, the defendants no. 4,7,9 and 10 has expired
prior to institution of the suit. The plaintiff has also mentioned in its
chamber summons that the defendant no. 9 has expired on 31.12.1993.
It means prior to institution of suit. Inspite of it, he failed to take steps to
bring legal representatives of defendants no. 4, 7, 9 and 10 on record till
1996. Even after filing of chamber summons no.345 of 1996, the
plaintiff failed to proceed with the same and it stands dismissed in
default. The defendant did not take pain to restore the same
immediately. Now at belated stage in the year 2010 again the plaintiff
has filed the present chamber summons for same reliefs. Therefore, in
-- 7 of 9 --
8 Ch/sum. no.442-19; In Suit no.8176 of 1994
(High Ct. Suit no.842 -94)
my view the plaintiff failed to made out case for bringing legal
representative or legal heirs of deceased defendants on record for want
of sufficient cause shown for condoning the delay.
19. It is contention of the plaintiff that name of Smt.Tarabai
Amin and Shantilal Parmar is wrongly mentioned as the defendant no.8
when they are two different persons. Hence he wants to show Tarabai
Amin and Shantilal Parmar as the defendant no. 8(a) and 8(b). In my
view only to that effect the amendment needs to be allowed. Hence my
answer to point no. 1 is in partly affirmative.
As to Point no. 2:
20. In view of my above discussion, I pass the following order:
ORDER
Chamber summons no.442/2019 (old ch/sum.
no.747/2010) is hereby partly allowed. The prayer for bringing
legal heirs or legal representative of deceased defendants
no.2,4,7,9, and 10 on record is hereby rejected. The suit stands
abated against defendants no. 2,4,7,9,and 10.
The plaintiff is permitted to shown Smt. Tarabai Amin
and Shantilal Parmar as defendant no.8(a) and 8(b), being two
different persons in the clause title of the suit. The plaintiff is
directed to carry out amendment to that effect only within 14
days.
Chamber summons is disposed of accordingly.
(Virendra D. Kedar)
Judge, City Civil & Sessions
Court,Gr.Mumbai
Date:.08.09.2022 (C.R. No.1)
Dictated on : 08.09.2022
Transcribed on : 12.09.2022
Signed on :
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9 Ch/sum. no.442-19; In Suit no.8176 of 1994
(High Ct. Suit no.842 -94)
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE 14.09.2022 NAME OF STENOGRAPHER(GI)
Mrs. V. V. Mhatre
TIME:
Name of the Judge (With Court room no.) HHJ Shri Virendra D. Kedar
(Court Room No.1)
Date of Pronouncement of JUDGEMENT/ORDER 07.09.2022
JUDGMENT/ORDER signed by P.O. on 08.09.2022
JUDGEMENT/ORDER uploaded on 14.09.2022
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