Final Order 1

Order Details: Chamber summons
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IN THE COURT OF CITY CIVIL COURT AT GR.BOMBAY
CHAMBER SUMMONS NO.328 OF 2018
IN
S.C. SUIT NO.8801 OF 1995
Mrs. Jeanette Marshal Rodriques ..Plaintiff
V/s
Mr.Dominic Rodriques and ors ..Defendants
Ld. advocate Menezes for the plaintiff.
Ld. advocate Smt.Mamta Singh for defendant no.7
CORAM: HIS HONOUR JUDGE SHRI M.SALMAN AZMI
DATE: 24/07/2019
ORAL ORDER
1. This Chamber summons is tendered by the plaintiff
for bringing legal heirs of deceased defendant nos.2,4
and 6 on record.
2. Heard. Ld. Counsel for plaintiff submitted that
during the pendency of the suit defendant nos.2,4
and 6 expired. Defendant nos.1,3 and 5 refused to
provide the plaintiff with the death certificates or the
names and addresses of LRs of defendant nos.2,4 and
6. The postal envelopes to defendant nos.2 and 4
was returned with the endorsement 'expired', and
that of defendant no.6 was returned with remark
'unclaimed'. The plaintiff submitted that defendant
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nos.2,4 and 6 expired. The plaintiff came to know
through some acquaintance the alleged names of
legal heirs of defendant nos.2,4 and 6. The notice
was issued by the plaintiff's advocate to the
defendants on 27/01/2018 and 02/02/2018 for
bringing the legal heirs on record. They
acknowledged the receipt. The legal heirs of
defendant nos.2 and 4 acknowledged receipt of the
notice and postal envelopes to the legal heirs of
defendant no.6 was returned with the postal remark
'unclaimed.' The plaintiff came to know the names
and therefore she wish to incorporate them in the
plaint.
3. The chamber summons was opposed by defendant
no.7 only. The suit against defendant nos.2 and 6
was abated by order dated 22/01/2018. So, the
relief cannot be granted unless the abatement order
is set aside. On this ground the chamber summons
be dismissed. The chamber summons is hopelessly
time barred as the same is filed after almost 7 years
despite having knowledge of the demise of the
deceased defendants. On 29/11/2016, when none
appeared for the defendants the Court passed an
order to proceed for hearing exparte against the
defendant nos.1 to 6. The advocate for the plaintiff
despite being aware about the death of defendant
nos.2,4 and 6 suppressed the fact intentionally that
she was aware of the details of legal heirs of
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deceased defendants prior to 2012, however
deliberately did not take appropriate steps. Hence
prayed for dismissal of the chamber summons.
4. Defendant no.7 has filed copy of chamber summons
no.2792 of 2014 wherein the plaintiff has made
statement that defendant nos.2,4 and 6 expired but
she had not taken any steps. On perusal of the
record it appears that chamber summons no.2972 of
2014 was moved by the plaintiff for substituted
service to defendant nos.2,4 and 6. From the
statement of the plaintiff it appears that defendant
nos.2,4 and 6 expired. As per order 22 rule 10(A) of
the C.P.C. it is the duty of the pleader appearing for a
party to the suit when he comes to know about the
death of that party to inform the Court about it. It is
apparent from the record that no such information
was not given by the Ld. Counsel for the above said
defendants. In such circumstances, it is difficult for
the plaintiff to tender the chamber summons for
bringing the heirs of defendant nos.2,4 and 6.
Hence, the same cannot be ignored.
5. It is the contention of the defendants that suit is
abated against defendant nos.2 and 4. No application
for setting aside the abatement is filed. When the
chamber summons is tendered for bringing the legal
heirs of deceased defendants, it impliedly include the
prayer for setting aside the abatement order. Mere
not filing a separate application for abatement would
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not be impediment in dealing with the present
chamber summons. Even there should not be hyper
technical or pedantic approach in dealing with such
type of application. Hence, it is expedient to pass
following order:
ORDER
1. Chamber Summons No. 328/2018 is allowed in terms of
prayer clause (a).
2. Plaintiff to carry out the necessary amendment within a
period of 14 days.
2. Chamber Summons is disposed of accordingly.
24/07/2019 M.SALMAN AZMI
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 24/07/2019
Transcribed on : 26/07/2019
Signed on : 03/08/2019
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
03/08/19 at 4.00 pm.
MRS.T.C.KAMBLE
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of
judgment/order
24/07/2019
Judgment and order signed by P.O. 03/08/2019
Judgment/order uploaded on 03/08/2019
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