Final Order 1

Order Details: Other
Pdf Text: Noting : 26/06/2019 1 C. R. No. 01
26/06/2019
SU-9650/90
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
Adv. Chanchal Sharma for plaintiff present.
Adv. Sonali Davli for defendant no. 6 present.
The order of this court was complied by the plaintiff. In
the matter the evidence of the parties was completed.
Adjourned for final arguments to 12.7.2019.
Judge
26/06/2019
SU-8123/96
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
Adv. Maya Sarkar for plaintiff present.
Adv. Laxmi Narayan Shukla for deft. nos. 1 and 2 present.
Adv. Yasmin Tawaria for deft. no .3 present.
The Ld. counsel for the plaintiff submitted that plaintiff has
complied the order of this court and deposited Rs. 2,000/-.
Adjourned for recording evidence to 22.7.2019.
Judge
26/06/2019
SU-7758/97
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
Plaintiff present.
Adv. Laxminarayan Shukla for plaintiff present.
Adv. Yasmin Tawaria for deft. no .1 present.
Adv. Sarkar for deft. no. 2 present.
The Ld. counsel for deft. no. 1 submitted that the mater is
for additional evidence, but plaintiff has not served the
affidavit of examination in chief, documents and additional
affidavit of examination in chief. The Ld. counsel for the
plaintiff submitted that he will take instruction from the
plaintiff to supply the documents. The matter is for
evidence. The deft. no .1 is party to the suit. The plaintiff
is directed to supply the copy of affidavit of examination in
chief, documents filed with it and the additional affidavit of
evidence on or before next date without fail.
Adjourned for recording evidence to 22.7.2019
Judge
-- 1 of 16 --
Noting : 26/06/2019 2 C. R. No. 01
26/06/2019
SU-1957/17
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
Adv. Sandip Ghogare for plaintiff present.
None present for defendant.
Adjourned for framing issues to 27.8.2019.
Judge
26/06/2019
SU-2617/16
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
Adv. Mohit Sant for plaintiff present.
Adv. Ravindra Chile for defendant nos. 4 and 6 present.
Adv. Karande for deft. nos .2 present.
The Ld. Counsel for the deft. nos. 4 and 6 submitted that
order of the predecessor of this court allowing the Chamber
Summons for amendment has been stayed by the Hon'ble
High Court in Writ Petition No. 28570/18. He would
submit that said stay is still in force. He would submit that
Notice of Motions are pending for hearing. The Ld counsel
for the plaintiff seeks time for hearing on Notice of Motions.
By consent of the parties matter is adjourned for hearing on
Notice of Motions to 22.7.2019 at 2.45 pm.
Judge
26/06/2019
SU-2282/14
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
Adv. Gayatri Nayak for plaintiff present.
Adv. Kamble for all defendants present and seeks time to
file say on admissibility of the documents.
Adjourned for say and hearing on admissibility of
documents to 30.7.2019.
Judge
26/06/2019
EA-107/11
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
Adv. Atul Bhatt for Decree Holder present.
Adv. Modi for Judgment Debtor present.
The Ld counsel for the JD submitted that the JD has
challenged the order of this court before the Hon'ble High
Court. The matter in the Hon'ble High Court is listed on
12.11.2019 and prayed for the date in the month of
November. The Ld. counsel for the Decree holder has no
objection for the same.
By consent of the parties matter is posted for hearing to
21.11.2019.
Judge
26/06/2019
SU-2403/15
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
Adv. Ravindra Singh for plaintiff present.
None present for defendants.
Adv. for plaintiff seeks adjournment.
Adjourned for recording evidence to 17.9.2019.
Judge
26/06/2019
SU-2371/16
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
None present on behalf of the plaintiff.
Matter is for cross examination of PW-1.
Adjourned for recording evidence as a last chance to
19.9.2019.
Judge
-- 2 of 16 --
Noting : 26/06/2019 3 C. R. No. 01
25/06/2019
M. A. 1583/19
in B. A. 591/19
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
Adv. Pradeep Singh for applicant present.
APP Mangesh Arote for State present.
APP seeks time to file reply.
Adjourned for reply to 26.6.2019.
Judge
26/06/2019
SU-3880/08
Exh. 17
Exh. 18
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
Plaintiff present.
Adv. Yadav for plaintiff present.
Adv. V. L. Gurav for defendants present.
Vakalatnama filed on behalf of defendant no. 1. O-R and R.
Vakalatnama filed on behalf of defendant no. 2. O-R and R.
The Ld counsel for the deft. submitted that defendant has
not received the copy of the affidavit and documents. The
Ld. counsel for the plaintiff intend to supply the same.
Adjourned for cross examination of PW-1 to 2.8.2019.
Judge
26/06/2019
SU-8972/00
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
Adv. Apoorva Pawar for plaintiff present.
Adv. Sunita Potdar for defendant present.
PW-1 present.
The Ld. counsel for defendant seeks time as she is not
keeping well and his client is also not present due to illness.
Adjourned for cross examination of PW-1 to 16.7.2019.
Judge
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-- 3 of 16 --
Noting : 26/06/2019 4 C. R. No. 01
26/06/2019
SU-4018/02
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
Adv. Rajeshwar for plaintiff present.
Adv. Vrushali Kabre for deft. nos. 1 and 2 present.
Ld. plaintiff seeks time to file reply on Exh. 55.
Adjourned for say on Exh. 55 to 18.7.2019.
Judge
26/06/2019
SU-6963/02
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
Adv. Vrushali Kabre for plaintiff present.
Adv. Rajeshwar for defendant no. 2 present.
None present for deft. no. 2. As a last chance matter is
adjourned for cross examination of PW-1 for defendant no.
1.
Adjourned for cross examination of PW-1 to 18.7.2019.
Judge
26/06/2019
SU-2097/18
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
Adv. Sapna Sharma for plaintiff present.
Adv. P. A. Sharma for defendant present.
By consent of the parties, adjourned for draft issues to
22.8.2019.
Judge
26/06/2019
SU-2333/18
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
Adv. Sapna Sharma for plaintiff present.
Adv. P. A. Sharma for defendant present.
By consent of the parties, adjourned for draft issues to
22.8.2019.
Judge
26/06/2019
SU-3169/18
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
Adv. Sapna Sharma for plaintiff present.
Adv. P. A. Sharma for defendant present.
By consent of the parties, adjourned for draft issues to
22.8.2019.
Judge
26/06/2019
SU-2817/18
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
Adv. P. A. Sawant for plaintiff present.
Adjourned for affidavit of service to 26.8.2019.
Judge
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-- 4 of 16 --
Noting : 26/06/2019 5 C. R. No. 01
26/06/2019
SU-8476/02
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
Adv. Desai for plaintiff present.
None present for defendants.
It appears that on 6.5.2013 the last exhibit was marked as
Exh. 33. Thereafter the defendant had appeared and filed
written statement which was marked as Exh. 5 and
subsequently the exhibits were marked. Those are required
to be correct and hence the Sheristedar is directed to
correct the record by marking the written statement as Exh.
34 and other exhibits so on.
The Ld. Counsel for the plaintiff submitted that on next
date witness would present for cross examination.
Adjourned for cross examination of PW-1 to 25.7.2019.
Judge
26/06/2019
SU-9797/82
Exh. 51
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
Adv. Bhadang with Adv. Shreegeeta Rai for plaintiff
present.
Adv. Pankaj Kavli for defendant present.
Further cross of PW-1 completed.
Evidence closing pursis filed by the plaintiff. O-Seen and
filed. O-Seen and filed.
Adjourned for recording evidence of defendant to
12.7.2019.
Judge
26/06/2019
SU-588/19
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
Adv. Pradeep Gandhy with Adv. Radhika for plaintiff
present.
Adv. Bhilwe for defendant present.
Court is busy in other matters.
Adjourned for NM hearing to 1.7.2019.
Judge
26/06/2019
SU-5945/07
Exh. 10
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
By precepie.
Adv. Kinjal Upadhyay for applicant / proposed plaintiff
present.
Vakalatnama filed on behalf of applicant / proposed
plaintiff. O-Seen and filed.
Applicant / proposed plaintiff tendered Chamber summons.
Leave is granted to register.
Matter is already adjourned to 16.7.2019.
Adjourned for reply to chamber summons to 16.7.2019.
Judge
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Noting : 26/06/2019 6 C. R. No. 01
26/06/2019
SU-2950/14
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
Plaintiff present.
None present for defendants.
Defendants failed to tender the registered NM.
Defendants to take steps for submitting registered NM.
Adjourned for compliance to 7.8.2019.
Judge
26/06/2019
SU-1624/17
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
None present.
Adjourned for dismissal of NM to 8.8.2019.
Judge
26/06/2019
SU-1181/18
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
Adv. S. K. Dubey for plaintiff present.
Adv. Desai for defendant present.
Court is busy in other matters.
By consent of the parties, adjourned for NM hearing to
25.7.2019.
Judge
26/06/2019
SU-3845/13
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
Adv. B. K. Raje for plaintiff present.
Adv. P. A. Sharma for defendant present.
Reply to NM filed by Ld. advocate for plaintiff.
Adjourned for NM hearing to 30.7.2019.
Judge
26/06/2019
SU-400/19
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
Adv. D. K. Raje for plaintiff present.
Deft. nos. 1 and 2 present.
The plaintiff filed original writ of summons.
Plaintiff filed registered NM 1219/19. TOR.
The service was made to defendants on 21.6.2019. Matter
is adjourned for written statement and reply to NM to
30.7.2019.
Judge
26/06/2019
SU-792/11
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
Adv. Ashutosh Gole for plaintiff present.
Adv. Chaturvedi for defendants present.
Plaintiff tendered registered NM bearing no. 526/19. TOR.
Reply to NM filed by defendants. TOR.
Adjourned for NM hearing to 19.8.2019.
Judge
26/06/2019
SU-229/19
Exh. 7
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
None present for plaintiff.
Adv. Neel Gala for defendant present.
Written Statement filed on behalf of defendant. O-R and R.
Adjourned for draft issues to 19.8.2019.
Judge
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Noting : 26/06/2019 7 C. R. No. 01
26/06/2019
M. A. 1583/19
Exh. 2
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
Adv. Pradeep Singh for applicant present.
APP Mangesh Arote for State present.
Reply filed by the prosecution. O-Read and recorded.
Read the applicant. Heard Ld. Counsel for the applicant
and Ld. APP. Considering the reason mentioned in the
application, time to furnish surety is extended for eight
weeks from today. Application is disposed of accordingly.
Judge
26/06/2019
B A. 1166/19
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
Adv. for applicant present.
APP Mangesh Arote for State present.
Court is busy in other matters.
Adjourned for argument of APP to 27.6.2019 at 4.30 pm.
Judge
26/06/2019
SU-2882/10
Exh. 2
Exh.3
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
Adv. Ankush Bhatugde for plaintiff present.
Adv. Surbhi Gujar for deft. no .1 present.
Written statement (Already filed).
Issues framed by the Court.
Adjourned for recording evidence to 6.8.2019.
Judge
26/06/2019
SU-167/14
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
Adv. S. R. Gupta for plaintiff present.
Adv. Sasane for defendant present.
Rejoinder to NM filed by the plaintiff. Copy supplied to
defendant.
Adjourned for NM hearing to 31.7.2019.
Judge
26/06/2019
M. A. 1578/19
Exh. 2
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
Adv.Pradeep Singh for applicant present.
APP Mangesh Arote for State present.
Reply filed by the prosecution. O-Read and recorded.
Heard.
FRSR following order is passed
ORDER
Misc. Application No. 1578/2019 stands rejected.
Judge
-- 7 of 16 --
Noting : 26/06/2019 8 C. R. No. 01
26/06/2019
SU-3252/12
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
None present.
Court is busy in other matters.
Adjourned for order on NM No. 4490/18 and 4491/18 to
29.6.2019.
Judge
26/06/2019
SU-875/18
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
None present.
Court is busy in other matters.
Adjourned for NM order to 27.6.2019.
Judge
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-- 8 of 16 --
Noting : 26/06/2019 9 C. R. No. 01
26/06/2019
SU-755/91
Exh. 4-B
Exh. 5-B
Exh. 5-C
Exh. 6
Exh. 7
Exh. 8
Exh. 9
Exh. 10
Exh. 11
Exh. 12
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
Adv. Saumya Brijmohan for plaintiff present.
Adv. Anand Nikhal for defendant present.
Additional affidavit of PW- 1- Gajanan Rajaram Parulekar.
Additional compilation of documents filed by the plaintiff.
Say filed by defendant on admissibility of documents.
O-R and R.
The documents at serial nos. 3, 4, 7 and 8 of compilation of
documents (Exh. 5) were admitted by the defendant and
therefore those documents are marked as exhibit
accordingly. The plaintiff has produced original agreement
at sr. No. 2, 5 and 6 and the original plan at serial no. 9
with list Exh. 5 and therefore those documents are marked
as exhibits accordingly. The plaintiff has produced certified
copy at serial nos. 19 and 26 with list Exh. 5 and certified
copy with list Exh. 5A and two documents with list Exh. 5-
B, therefore those documents are also marked as Exhibit
accordingly. The document at Sr. nos. 10 to 15, 17, 18 and
21 to 25 are the correspondences between the plaintiff and
the defendant society. Those are the typed copies and were
referred in the plaint. The defendant has not denied its
existence. The plaintiff has laid the foundation that the
office copies of those are not traceable. Hence, those
documents are marked as exhibits accordingly. Similarly
document at sr. no. 28 is also typed copy and find place in
the plaint which is not specifically denied by the defendant
foundation is laid that office copy is not traceable. Hence it
is marked as exhibit . the documents at sr. no .29 and 30
are the office copies and therefore marked as Exhibits.
Agreement executed between Jyotsna Chimanlal Amin and
Gajanan Rajaram Parulekar, Partner of the plaintiff.
Original certified copy of plan of the subdivided plots of the
land bearing Survey No. 92 obtained from the Land
Records, Mumbai Suburban Districts.
Agreement executed between Gajanan Rajaram Parulekar
and Manohar Vasantrao Dighe and Arun Rama Naik as
Chief Promoters of the Defendant society.
Agreement (Package Deal Agreement) executed between
Gajanan Rajaram Parulekar as the partner of the plaintiff
and Manohar Vasantrao Dighe as the Chief Promoter /
Employer of the defendant society.
Agreement executed between Gajanan Rajaram Parulekar
as the Partner of the plaintiff and Shri A. A. Naik, Shri S. A.
Parab and Shri Manohar Vasantrao Dighe as Chairman,
Managing Committee and Secretary of the Defendant
Society respectively.
Certified true copy of the extract from Property Register
Card obtained from the City Survey Pahadi Geregaon
Taluka Borivali, District Baombay relating to property
bearing C. T. S. No.
Agreement executed between Gajanan Rajaram Parulekar
as the partner of the plaintiff and Shri A. A. Naik, Shri A. R.
Nayak and Manohar Vasantrao Dighe as Chairman,
Managing Committee Member / Treasurer and Secretary of
the Defendant Society respectively.
-- 9 of 16 --
Noting : 26/06/2019 10 C. R. No. 01
Exh. 13
Exh. 14
Exh. 15
Exh. 16
Exh. 17
Exh. 18
Exh. 19
Exh. 20
Exh. 21
Exh. 22
Exh. 23
Exh. 24
Exh. 25
Exh. 26
Exh. 27
Exh. 28
Exh. 29
Exh. 30
Exh. 31
Ground floor plan of the property bearing Survey No. 92,
Hissa No. 5 and City Survey Nos. 289-A (Plot A) of Pahadi
Goregaon within Greater Bombay.
Photocopy of the typed copy of letter of plaintiff addressed
to the Honorary Secretary of the defendant society.
Photocopy of the typed copy of the letter of plaintiff dated
7th /13th February 1986 addressed to the Honorary secretary
of the defendant society.
Photocopy of the typed copy of the Defendant Society letter
bearing reference no. 16/85-86 addressed to the plaintiff.
Photocopy of the typed copy of the defendant society letter
bearing reference no. 22/85-86 address to the plaintiff.
Photocopy of the typed copy of the plaintiffs demand notice
addressed to the defendant society.
Photocopy of the typed copy of the defendant society letter
bearing reference no. 5/86-87 addressed to the plaintiff.
Photocopy of the typed copy of letter addressed by Mr. M.
R. Deshpande, advocate of the plaintiff to the defendant
society with a copy marked to the plaintiff.
Photocopy of the typed copy of the letter addressed by Mr.
N. Ranganathan, advocate of defendant society to plaintiffs
advocate, Mr. M. R. Deshpande.
Certified copy of the affidavit of Mr. D. S. Bansode as
Secretary and on behalf of the defendant society, filed in
Appeal no. 548 of 1987 in the Maharashtra State
Cooperative Appellate Court at Bombay.
Photocopy of the typed copy of the letter issued by the
plaintiffs advocate Mr. M. R. Deshpande to the Secretary of
the defendant society with a copy marked to the plaintiff.
Photostat copy of letter bearing reference no. 1/85-86
addressed by Mr. G. L. Tawte, Chairman of the defendant
society to M/s C M Belekar, Architect.
Photostat copy of letter addressed by Mr. G. . Tawte,
Chairman of the defendant society to M/s C M Belekar,
Architect.
Photostat copy of letter bearing reference no. 19/86-87
addressed by Mr. G. L. Tawte, Chairman of the defendant
society to M/s C. M. Belekar, Architect.
Photocopy of the typed copy of letter addressed by Solomon
and Col, Advocates of the plaintiff to the Secretary of the
defendant society.
Original certified copy of order passed by the Hon'ble City
Civil Court.
Photocopy of the typed copy of letter addressed by M/s
Solomon and Co., advocates of the plaintiff to the Registrar
Co-operative Societies with a copy marked to District Dy.
Registrar of Cooperative Societies, Pune.
Office copy of the letter addressed by M/s Solomon and
Co., Advocates of the plaintiff to the Registrar Cooperative
Societies, Pune with a copy marked to District Dy. Registrar
of Cooperatives Societies along with its acknowledgment
card for Registrar Cooperative Societies, Pune.
Office copy of the letter addressed by M/s Solomon and
Co., Advocates of the plaintiff to the Registrar Cooperative
Societies, Pune with a copy marked to District Dy. Registrar
-- 10 of 16 --
Noting : 26/06/2019 11 C. R. No. 01
Exh. 32
Exh. 33
Exh. 34
of Cooperative Societies with acknowledgment of Dy.
Registrar Cooperative Societies.
Certified copy of the Order under Order 2 Rule 2 in Suit No.
2957/88.
Certified copy of extract from the Registrar of Firms,
Bombay.
Certified copy of the order passed in Suit No. 4589/88.
Adjourned for cross examination of PW-1 to 23.7.2019
Judge
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-- 11 of 16 --
Noting : 26/06/2019 12 C. R. No. 01
26/06/2019
EA-381/13
Exh. 13
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
Adv. Swati Sawant for DH present.
Adv. Aurup Dasgupta with Adv. Ms. Sonam Ghiya I/b
Jangiani Narula and Associates present for applicant Gavin
Almeida (Infinity Group) present.
Application filed by JD for further oral examination in chief
of applicant Gavin Almeida.
Say filed by Ld. Counsel for the decree Holder on Exh. 13
on application itself.
Order below Exh. 13
Read application and reply. Heard. The Ld. counsel for the
applicant / objectionist submitted that at the time of
marking exhibit the document at serial no. 5 of Exh. 3a, the
Ld. predecessor of this court held that the applicant is at
liberty to prove the document as per law and similarly he
had the document at serial no. 4 of Exh. 3 which were also
not marked as exhibit. He therefore submit that the
applicant be permitted to prove the document by oral
examination in chief.
The Ld .counsel for the Decree Holder opposed the prayer
on the count that the application is not maintainable. The
stage is for cross examination. The applicant has to take
appropriate steps for proving the document.
The documents were marked as exhibits and the matter was
placed for cross examination. Still applicant / witness had
not entered the witness box. No doubt the matter is
pending for cross examination of the applicant, but in order
to avoid further complications and to afford fair
opportunity to the parties, in the interest of justice, the
application needs consideration. Hence, it is expedient to
pass following order.
ORDER
1. Application (Exh. 13) is allowed.
2. Applicant is permitted to lead further oral examination
in chief.
3. Application is disposed of accordingly.
Cross examination of applicant partly recorded.
Adjourned for further cross examination of applicant to
3.7.2019.
Judge
-- 12 of 16 --
Noting : 26/06/2019 13 C. R. No. 01
26/06/2019
SU-163/14
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
Adv. Mhatre for plaintiff present.
Adv. Deogirikar for deft. no. 3 present.
Adv. Meenu Singh for deft. nos. 1 and 2 present.
Order below Exh. 12
Read application. Heard Ld counsel for deft. no. 3. It is
submitted on behalf of deft. no 3 that he has tendered the
copy of counter claim to the original plaintiff on 18.7.2018.
The written statement to counter claim was filed on
12.2.2019 by the plaintiff without seeking condonation of
delay in filing the written statement. He would submit
that as per Order VIII rule 1 of the CPC the written
statement is required to be filed within 30 days and with
the leave of the court within 90 days. The written
statement was filed after six months and therefore the order
dated 12.2.2019 is required to be modified.
On perusal of the record it appears that no written
statement order was not passed. The written statement was
tendered on 12.2.2019. It was taken on record. The
counsel for the original deft. no. 3 was not present on that
day. The roznama dated 5.3.2019 speaks that the counsel
for original deft. Nos. 3 was present and on that day no
such application was moved on behalf of deft. no. 3 or
objection was taken. This application was tendered on
9.4.2019 after a period of two months of taking written
statement on record. The provisions of order 8 rule 1 of
CPC are directory. Even otherwise when the written
statement of the original plaintiff is taken on the record by
the predecessor of this court, it would not be proper for this
court to review the order when there is no apparent
illegality. No prejudice would be caused to the original
deft. no. 3. The application needs no consideration.
Hence, the application (Exh. 12) is rejected.
Intervener Mr. Harshit Mhatre is presnet. He seeks time to
engage new advocate for hearing Chamber summons.
Granted as a last chance.
Adv. Meenu Singh tendered registered NM 889/18. TOR.
Heard argument on NM No. 889/18.
Order below NM 889/18
This Notice of Motion is tendered by original defendant
nos. 1 and 2 for condoning the delay in filing written
statement to the counter claim of original defendant no. 3.
The Ld. counsel for defendant nos. 1 and 2 submitted that
due to financial constrain and illness of the defendant no. 1
the written statement to counter claim cannot be filed
within stipulated time.
The original deft. no. 3/ plaintiff did not seriously opposed
the leave for condonation of delay.
It is settled position of the law that, at the time of
entertaining the application for condonation of delay, the
court should not adopt hyper technical and pedantic
approach. In the interest of justice Notice of Motion needs
consideration. Hence it is expedient to pass following
-- 13 of 16 --
Noting : 26/06/2019 14 C. R. No. 01
Exh 13
order.
ORDER
1. Notice of Motion No. 889/18 is made absolute in terms
of prayer clause (a) and (b).
2. Notice of Motion is disposed of accordingly.
_______________________________________________
Written statement of deft. nos. 3 and 4 to the counter claim
on the record is marked as Exh. 13. O-Read and recorded.
Adjourned for NM and Ch/s hearing to 23.7.2019.
Judge
26/06/2019
SU-7581/81
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
Adv. Amin for plaintiff present.
Adv. Giriraj with Adv. M.s. Anasamau Sayed I/b Bilawala
and co. for deft. no. 3 present.
Heard argument on Chamber summons no. 1005/17.
Order on Chamber Summons No. 1005/2017
The chamber summons No. 1005/17 is tendered by the
plaintiff for brining the legal heirs of defendant no. 2 on the
record. The Ld. counsel for the plaintiff contended that
defendant no. 2 expired on 29.1.2017 and after getting the
information, the advocate for plaintiff requested the
counsel for the defendant no. 2 vide letter dated 28.2.2017
to furnish the name and addresses of the legal
representatives of defendant no. 2. As there was no
response, he again issued letter dated 2.3.2017 requesting
the advocate for defendant no. 2 and 3 to furnish
particulars as per letter dated 20.2.2017. The counsel for
the defendant no. 2 and 3, by letter dated 3.3.2017,
enclosed Death Certificate of defendant no. 2, but did not
furnish the details of the legal representatives of defendant
no. 2. He again, by letter dated 7.3.2017, wrote to the
counsel for the defendant no. 2 to furnish the particulars of
legal representatives of defendant no. 2. He would submit
that the counsel for the deft. no. 2 and 3 made statement
before the Hon'ble High Court on 7.8.2017 for providing
the particulars of legal representatives of deft. no. 2. He
would submit that the the counsel for deft. no. 2 provided
the same on 8.9.2017. Accordingly the affidavit was sworn
and the chamber summons was tendered on 4.10.2017.
The chamber summons is opposed by deft. no .3 on the
count that the prayer for setting aside abatement is not
made. Application for bringing the legal representatives is
moved after the period of 90 days. The plaintiff has no
sufficient cause for delay and therefore the chamber
summons needs to be rejected.
On perusal of the prayer it reveals that the prayer for
setting aside abatement is not made. The Ld. counsel for
the plaintiff placed reliance upon the judgment of the
Hon'ble Supreme Court in the case of
Mithailal Dalsangar
Singh and Ors. Vs. Annabai Devram Kini and Ors., (2003)
10 Supreme Court Cases 691, where in the Hon'ble Apex
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Court held that,
“8. Inasmuch as the abatement results in
denial of hearing on the merits of the case, the provision of
abatement has to be construed strictly. On the other hand,
the prayer for setting aside an abatement and the dismissal
consequent upon an abatement, have to be considered
liberally. A simple prayer for bringing the legal
representatives on record without specifically praying for
setting aside of an abatement may in substance be
construed as a prayer for setting aside the abatement.
–-------. A prayer for bringing the legal representatives on
record, if allowed, would have the effect of setting aside the
abatement as the relief of setting aside abatement through
not asked for in so many words is in effect being actually
asked for and is necessarily implied. Too technical or
pedantic an approach in such cases is not called for.”
The Ld. counsel for the deft. no. 3 pointed out the judgment
of the Hon'ble Supreme Court in case of
Katari
Suryanarayana and Ors. Vs. Koppisetti Subba Rao and Ors.
in Civil appeal no. 2240/209. He pointed out that the
Hon'ble Apex court has laid down the principle for dealing
with the application of setting aside abatement and criteria
for considering the application for condonation of delay. He
would submit that the application is casually drafted
without any particulars and materials of sufficient cause.
At the outset it is pertinent to note that, the suit is
of the year 1981. The defendant no. 2 expired on
29.1.2017. Immediately after his death i.e. on 20.2.2017
the counsel for the plaintiff requested the advocate for deft.
nos. 2 and 3 to supply the details of legal representatives of
deft. no. 2. Subsequently reminders were made but it
appears that the counsel for the deft. nos. 2 and 3 did not
supply the particulars of the legal representatives of the
deft. no. 2. On the contrary, by letter dated 3.3.2017, the
counsel for deceased deft. no. 2 informed the counsel for
the plaintiff to delete the name of deft. no. 2 and there is no
requirement for furnishing the particulars of legal
representatives of deceased deft. no. 2. The counsel for the
deft. no. 2a made statement before the Hon'ble High Court
for giving the list of the legal representatives of deft. no. 2
and subsequently on 8.9.2017 the list of legal
representatives were provided.
After considering the sequence of the events, as
narrated above it appears that the plaintiff has made efforts
to get the particulars of the legal representatives of
defendant no. 2. In spite of his efforts he could get the
particulars of legal representatives of deft. no. 2 after expiry
of period of limitation. In dealing with such type of
application, when this court is the fact finding court, should
not adopt hyper-technical and pedantic approach. If
the present chamber summons is considered it would not be
prejudicial to the right of the defendants. In view of the
law laid down by the Hon'ble Apex court in the case of
Mithailal (Supra), the prayer for bringing legal
representatives on record impliedly includes the prayer for
setting aside abatement. Therefore, the objection put forth
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by the ld. counsel for deft. no .3 is not acceptable.
In view of the forging reasons the Chamber summons
needs consideration. Hence it is expedient to pass following
order.
ORDER
1. Chamber Summons No. 1005/2017 is made absolute in
terms of prayer clause (a) and (B) subject to cost of Rs.
2,000/-to be paid by the plaintiff to the defendant no. 3.
2. Plaintiff to carry out necessary amendment within the
mandatory period.
3. payment of costs is subject precedent.
_______________________________________________
Adjourned for compliance to 10.7.2019.
Judge
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