Final Order 1

Order Details: Chamber summons
Pdf Text: .1. CH/S No. 385/2020 in
L.C. Suit No. 777-13
MHCC010026752020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
CHAMBER SUMMONS NO. 385 OF 2020
IN
L.C. SUIT NO. 777 OF 2013.
Shri. Abdul Jabbar Hiroo. ….............................. …. PLAINTIFF.
V/s.
Municipal Corporation of Greater Bombay. …..... …. DEFENDANT.
And
Mohd. Sadique Abdul Jabbar Qureshi. …..……… ...… APPLICANT.
CORAM : SHRI. A.G. SANTANI.
(Court Room No.11).
DATED : 06th January, 2022.
APPEARANCES :
Shri. B.P. Shukla, the Ld. Advocate for Plaintiff.
Shri. Khandagale, the Ld. Advocate for Defendant/MCGM.
*****
01. The applicant has taken out this Chamber Summons for the
condonation of delay of 1676 days, caused in preferring this Chamber
Summons, along-with prayer for his substitution as the plaintiff in place
of the deceased plaintiff in the cause-title of the plaint, by setting aside
abatement of the suit.
02. By filing this Chamber Summons the applicant contended
that the original plaintiff, i.e. his father, died on 09.04.2015 at Mumbai,
leaving the applicant as he is only legal representative. However, as he
was not aware about the present suit, he could not take timely steps for
his substitution. Only in February, 2020, he came to know about the suit
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.2. CH/S No. 385/2020 in
L.C. Suit No. 777-13
and therefore, he filed this Chamber Summons, along - with supporting
affidavit and the photocopy of death certificate of the original plaintiff.
The defendant objected this Chamber Summons on the ground that the
original plaintiff died on 09.04.2015 and in spite of knowledge of this
fact, the applicant didn’t move this Chamber Summons. In this way, this
Chamber Summons is filed belatedly, without any sufficient reason. The
suit already stood abated and therefore, it needs to be rejected.
03. Heard both the sides. Considering the rival submissions and
the record, the points for determination, along-with my findings and the
reasons therefor, are as under :
Sr. No. POINTS FINDINGS
(i). Whether the applicant is entitled for his
substitution in the suit?.……………….. .....Yes
(ii). What Order ? .............…....................... …. As per final Order.
REASONS FOR FINDINGS
AS TO POINT NO. 1.
04. By taking out this Chamber Summons, the applicant came
with specific contentions that though the original plaintiff i.e. his father
died on 09.04.2015, he was not aware about pendency of this suit. As
such, he could not take the requisite steps in this regard. Moreover, in
February, 2020, he came to know about this suit and hence, there has
been delay of 1676 days for preferring this Chamber Summons. Further,
he is the only legal representative of the deceased plaintiff. Here, it is to
be noted that by filing of the suit, the original plaintiff assailed the suit
notice dtd. 14.02.2013, issued by the defendant U/s 354-A of the MMC
Act. Needless to say that considering the nature of the reliefs claimed on
the trial, even after his death, the right to sue survived in his favour and
it can be continued by the applicant, being his only legal representative.
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.3. CH/S No. 385/2020 in
L.C. Suit No. 777-13
True it is that there has been considerable time-gap between his demise
and preferring this Chamber Summons, however, the fact remains that
on that count, yet no substantial rights could be accrued in favour of the
defendant. Being so, no prejudice would be caused to the defendant, if
he is substituted as the legal representative of the deceased plaintiff. On
this background, I am of the opinion that he being the necessary party
to this suit, his prayer for substitution as the legal representative of the
late plaintiff can be considered under Order XXII Rule 3, Order VI Rule
17 and Order I Rule 10 of the CPC, 1908. This would also further the
ends of justice. I do agree that there has been inordinate delay on behalf
of the applicant in preferring of this Chamber Summons and therefore,
while allowing this Chamber Summons, it would be just to impose costs
upon him to pacify the inconvenience caused to the defendant. Hence, I
answered point No. 1 in the affirmative and in answer to point No. 2, I
pass the following Order :
-: O R D E R :-
(i). Chamber Summons No. 385/2020 is allowed in terms of
prayer clause (a) and (b), subject to payment of costs of
Rs. 2,500/- (Rs. Two Thousand Five Hundred) to
the defendant.
(ii). The applicant to carry out this substitution, within two
weeks from passing of this Order.
{A.G. Santani}
Mumbai. Ad-hoc Judge,
Dated : 06.01.2022. City Civil Court, Mumbai.
Dictated on : 06.01.2022.
Transcribed on : 06.01.2022.
Signed on : 06.01.2022.
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.4. CH/S No. 385/2020 in
L.C. Suit No. 777-13
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT /ORDER”
On at a.m. Mrs. S.R.Mejari
UPLOADED DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court Room no.) H.H.J. A.G. Santani
C.R. No.11
Date of Pronouncement of
Judgment/Order
Judgment /Order signed by P.O. on
Judgment/Order uploaded on
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