Final Order 1

Order Details: Chamber summons
Pdf Text: MHCC010027992020
CNR NO.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO.403 OF 2020
IN
S.C. SUIT NO.218 OF 2017
Mr. Mangal S/o. Vijay Raut ]… Applicant
(Orig.Plaintiff)
In the matter of
Mr. Mangal S/o. Vijay Raut ]… Plaintiff
V/s.
Mr. Vilas S/o. Haribhau Jadhav ]...Defendant
And
Vinod Haribhau Jadhav ]...Respondent
(Proposed defendant)
Appearance:
Learned Advocate Mr. Ashok Singh for the Applicant (orig. plaintiff)
None for defendant.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.
BORLEPWAR
(C.R.No.13)
DATED : 9th April, 2021
MHCC010027992020
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Ch/s 403-2020 .. 2 .. Suit No.218/2017
ORAL ORDER
1. Plaintiff took out this Chamber Summons for condonation
of delay to bring the L.R.'s of defendant and to make consequential
amendment to the plaint.
2. Perused Chamber Summons, affidavit in support of
Chamber Summons. Heard Learned Advocate Mr. Ashok Singh for the
Applicant (Orig. plaintiff)
3. In brief, it is contention of the plaintiff that defendant died
during the pendency of the suit at Mumbai on 18.03.2018. Deceased
defendant was relative of the plaintiff.
4. Plaintiff was knowing that defendant died without leaving
a Class -I legal heir as per the Hindu Succession Act because deceased
defendant was a relative of the plaintiff.
5. Plaintiff recently went through the public notice dated
02.09.2019. The said public notice is published in Newspapers. One
Pearl Hazeline Co-operative Housing Societies Act, 1960 published the
said notice in local Newspapers “Navshakti and one in Free Journal
English Newspaper. The said society invited claim by the said public
notice from the public at large in respect of the flat No.C-704. It is
contended in the said Notice that the said Flat is in Pearl Hazeline Co-
operative Housing Society Limited, Gaothan Gali No.1, Opp. Post Office,
S.V. Road, Andheri (W), Mumbai – 400 053. It is also mentioned in the
said public notice that the said flat is owned /allotted by deceased. The
said flat is without any nomination in the record of the society. The
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deceased did not make any nomination regarding the said flat in the
said society.
6. The plaintiff raised his objection through Advocate letter
dated 09.09.2019 to the said public notice and called upon the said
society to disclose the names of the persons who are claiming to be the
beneficiary of the deceased defendant. The said Society did not
disclose name of any person to the plaintiff. Plaintiff personally visited
the said society on 15.09.2019. He requested to the said Society to
provide details of the beneficiaries of the said flat, if any. The office
bearers of the said Society unofficially informed to the plaintiff that
Respondent/proposed defendant filed claim against the said flat and
found that the Respondent/ proposed defendant frequently in the
resident of the deceased defendant.
7. Plaintiff inquired and came to know that respondent is real
brother brother of the deceased. Therefore, delay in bringing the L.R.'s
on record be condoned. Plaintiff be permitted to bring the Respondent
on record as a party defendant and to make consequential amendment
in the plaint.
8. Perused Affidavit of service dated 26.02.2021. It is
mentioned therein that copy of the Chamber Summons as well as
affidavit in support of Chamber Summons is served to the Respondent
and Respondent personally received inspite of it Respondent/ proposed
defendant did not remain present before the Court.
9. Perused xerox copy of the Death Certificate annexed with
the Affidavit in support of the Chamber Summon. Date of death
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18.03.2018 is mentioned therein. This Chamber Summons is registered
on 04.03.2020. Affidavit in support of Chamber Summons of the
plaintiff is affirmed on 24.02.2020.
10. Perused Order 22 Rule 4(1) of the Code of Civil Procedure.
As per Order 22, Rule 4, Sub Rule 1 of the CPC where one or two or
more defendants dies and the right to sue does not survive against the
surviving defendant or defendants alone, or a sole defendant or sole
surviving defendant dies and the right to sue survives, the Court, on an
application made in that behalf, shall cause the legal representative of
the deceased defendant to be made a party and shall proceed with the
suit.
11. As per Order 22, Rule 4, Sub Rule 2 of the CPC any person
so made a party may make any defence appropriate to his character as
legal representative of the deceased defendant.
12. As per Order 22, Rule 4, Sub Rule 3 of the CPC where
within the time limited by law no application is made under sub-rule
(1), the suit shall abate as against the deceased defendant.
13. Perused Article 120 of the Limitation Act. As per the said
provision legal representative of the deceased plaintiff or appellant or of
a deceased defendant or respondent, can be made a party to the
proceeding within ninety days from the date of death of the plaintiff,
appellant, defendant or respondent, as the case may be.
14. Perused Article 121 of the Limitation Act. As per the said
provision Order of abatement can be set aside. Period of limitation is
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sixty days to file application to set aside the abatement from the date of
abatement of the suit or proceeding.
15. Perused Section 5 of the Limitation Act, 1963. As per the
said provision any appeal or any application, other than an application
under any of the provisions of Order XXI of the Code of Civil Procedure,
1908, may be admitted after the prescribed period, if the applicant
satisfies the Court that he had sufficient cause for not preferring the
appeal or making any application within such period.
16. Perused Order 6 Rule 17 of the Code of Civil Procedure.
There is delay in taking out the Chamber Summons. Suit is already
abated against the defendant because of his death.
17. Considering the facts and circumstances and grounds of
delay in bringing the L.R.'s of deceased defendant on record, I am of the
opinion that delay can be condoned. Abatment of suit because of death
of defendant can be set aside and plaintiff can be permitted to bring the
L.R.'s on record and to make consequential amendment in the plaint.
Hence, following order:
ORDER
Chamber Summons no. 403 of 2020 in Summary Suit no. 218 of 2017 is
allowed as under-
1. Delay in taking out this Chamber summons is hereby condoned.
2. Abatement of Suit because of death of original defendant is hereby
set aside.
3. Plaintiff is permitted to bring proposed defendant as defendant
no. 1a in the plaint.
4. Plaintiff is allowed to make amendment in the plaint as per
schedule annexed to the Chamber Summons.
5. Due to Corona Virus Covid-19 Pandemic, it is not proper to permit
the plaintiff to carry out the amendment within 14 days from the date
of this order.
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6. Plaintiff is permitted to make consequential amendment to the
plaint, if any.
7. Plaintiff is directed to carry out amendment as directed above till
next date.
8. Plaintiff is directed to file on record amended copy of the plaint for
Court record after carrying out amendment.
9. Plaintiff is directed to serve copy of the amended plaint with writ of
summons to the added defendant no.1a on required process fee.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.13)
Dt.: 09/04/2021 City Civil Court, Gr. MUMBAI
Dictated on : 09.04.2021
Transcribed on : 19.04.2021
Checked on : 21.04.2021
Signed on : 23.04.2021 ( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.13)
City Civil Court, Gr. MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
23.04.2021 at 01.25 p.m.
UPLOAD DATE AND TIME (VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S. G.
BORLEPWAR
(COURT ROOM NO.13)
Date of pronouncement of judgment/order 09.04.2021
Judgment/order signed by P.O. on 23.04.2021
Judgment/order uploaded on 23.04.2021
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