Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION No.767 OF 2018
IN
SUIT No. 9488 OF 1989
Smt. Samir Narendra Gupta ..Plaintiff.
Versus.
Mahesh Ganpat Sahay Gupta & Ors. ..Defendant.
Plaintiff In Person.
None for defendant.
CORAM : Dinesh P. Surana
Court Room No.1
DATED : 26.04.2018.
ORAL ORDER
The present Notice of Motion is taken out by the plaintiff for
setting aside exparte order passed on 16 th February 2018 and for
restoration of the suit.
2. Though served the defendants and the proposed defendants who
were supposed to be brought on record by the plaintiff in the suit in
pursuance to the order dated 29.10.2015 in Chamber Summons No.509
of 2015 remained absent. The proposed defendants choses not to
appear and therefore were proceeded uncontested. Advocate Sanjay
Barde filed V.P. for Mahesh Gupta and undertakes to file V.P. for
Devraj Gupta and Madanraj Gupta. Notice of Motion is opposed by
affidavit in reply filed by advocate Sanjay Barde for Mahesh Gupta,
Devraj Gupta and Madanraj Gupta.
3. Heard Constituted attorney Dr. Narendra Gupta for the plaintiff.
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Also perused pleadings of Notice of Motion and written statement filed
by the defendants. Also perused R & P of the suit.
4. On perusal of the order passed on 16.02.2018, it seems that the
same was passed exparte and for the reason that the plaintiff failed to
bring the LRS of deceased defendant on record in pursuance to the
order dated 29.10.2015 in Chamber Summons No.509/2015. The main
order is not passed on merits. Therefore, this court has every power to
decide present Notice of Motion for setting aside the exparte order if,
the plaintiff is able to convince that the application can be allowed.
5. It is pertinent to note here that though several opportunities were
granted none for noticees or the person served remained present to
argue and oppose to present Notice of Motion. During argument
constituted attorney for the plaintiff made statement that the plaintiff is
ready to comply with the order passed in Chamber Summons
No.509/2015 dated 29.10.2015 without prejudice to their rights before
the Hon'ble High Court in Writ Petition filed by them challenging the
order in Chamber Summons No.509/2015 dated 29.10.2015. He
further submitted that if, as per the order dated 29.10.2015, along with
Upendra Shreedutt Singh, LRs of deceased defendant are added, they
may not be allowed to file written statement and take contrary stand
what is being taken by the original defendant No.1. He argued that the
Order VI Rule 18 of Civil Procedure Code is not yet enforced. He also
argued that how order in Chamber Summons No.509/2015 and
impugned order dated 16.02.2018 in Suit cannot sustain. However, his
arguments against Chamber Summons No.509/2015 and the impugned
order dated 16.02.2018 is nothing to do with the merits of the present
Notice of Motion.
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6. As regards merits of the present Notice of Motion is concerned, I
would like to say that the plaintiff being a female in the present suit has
prayed for her rights in suit property alleging that same is her stridhan.
The original defendant was her father. Now proposed defendant will be
Upendra Shreedutt Singh, as the executor of the Will of deceased
defendant, and thw LRs of original defendant. The present Notice of
Motion is taken out by the plaintiff on 23.02.2018 i.e., within a period
of one week. Therefore, there is diligence on the part of the plaintiff.
Now the plaintiff has also shown her desire to comply with the order
dated 29.10.2015 in Chamber Summons No.509/2015 which was the
reason for dismissal of suit for want of prosecution, as the plaintiff has
failed to comply with the said order dated 29.10.2015. As regards the
contention of the plaintiff is concerned, that the added defendants may
not be allowed to file written statement or to take adverse plea, I
would like to say that added defendants cannot be restrained from filing
their written statement under Order XXII Rule 4 (2) of CPC allows the
added defendant to file written statement to defend the suit which is
appropriate for their character as LRs. I would also like to mention here
that it is settled law that legal heirs or representatives, who step into
shoes of original party cannot take adverse plea than that of the original
defendants. Having regard to the fact that present Notice of Motion is
taken out by the plaintiff within short period, wherein she is litigating
since long time over her alleged right of stridhan, I am of the view that
Notice of Motion, which is not being objected by way of argument of
the noticees or respondents, is required to be allowed but subject to
reasonable costs to be imposed on the plaintiff for her delay in carrying
out amendment as per the order in Chamber Summons No.509/2015
dated 29.10.2015. Therefore following order is passed.
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ORDER
1. Notice of motion 767/18 is allowed subject to payment of costs of
Rs.5000/ to be deposited by the plaintiff in the office of Legal Aid
within 2 weeks from the date of this order, thereby the order dated
16.02.2018 dismissing the suit in default for want of prosecution by the
plaintiff is called back.
2. The order disallowing the plaintiff to carry out the amendment as
per order dated 29.10.2015 in Chamber Summons No.509 of 2015 is
also called back, thereby the plaintiff is granted fair opportunity in the
interest of justice to carry out amendment within 2 weeks from the date
of this order.
3. On noncompliance being made by the plaintiff of the order dated
29.10.2015 in Chamber Summons No.509 of 2015, the present Notice
of motion will be treated as rejected without reference to this Court.
4. On compliance being made by the plaintiff as aforesaid, the suit will
proceed further.
5. Plaintiff to serve amended copy of plaint to the added defendants as
per the order dated 29.10.2015 in Chamber Summons No.509 of 2015.
Order dictated in the open court and concluded at 6 pm.
(D. P. Surana)
Judge
City Civil Court,
Gr. Bombay
Dictated on : 26.04.2018.
Transcribed on : 27.04.2018
HHJ signed on : 27.04.2018
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CERTIFIED TO BE TRUE & CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER
27.04.2018, 5.50 p.m. Mr.Vishnu S. Shinde
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court Room No.1) HHJ Shri D.P. Surana (C.R.No.01)
Date of pronouncement of Judgment/ order 26.04.2018.
Judgment/Order signed by the P.O. on 27.04.2018.
Judgment/Order uploaded on 27.04.2018.
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