Interim Order 1

Order Details: Order below exhibit
Pdf Text: Order below Exh.3 ..1.. SU No. 1064-2020
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI.
ORDER BELOW EXH. 03
IN
S.C. SUIT NO. 1064 OF 2020
Shri Anup S. Mahanthy ] Plaintiff in person
V/s.
Smt. Urmila S Khadiye & 5 Ors. ]....Defendants
Appearances:-
Plaintiff in person.
Mr. C. P. Deogirikar, Advocate for defendant No. 2 to 6.
CORAM : HIS HONOUR JUDGE
AJIT N. MARE (C.R.NO.3)
DATED : 20th FEBRUARY, 2021.
O R D E R
Perused. Heard. Gone through the written notes of
submissions.
2. By application (Exh.3), the plaintiff has sought an order to
proceed with the suit in absence of Legal Representatives of defendant
No. 1 and to exempt him from bringing on record the Legal
Representatives of defendant No. 1, since defendant No. 1 has failed to
appear and to file the written statement.
3. The application is opposed on the ground that, such
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Order below Exh.3 ..2.. SU No. 1064-2020
permission cannot be granted as there was no complete service of the
proceedings on the defendants. The limitation to file the written
statement has not started in absence of proper service and so the
provisions of Order 22, Rule 4, Sub-Rule 4 of the Code of Civil
Procedure are not attracted in the present case.
4. Perusal of entire proceedings reveals that, there is no
affidavit of service filed by the plaintiff to indicate the service on
defendant No. 1. Though, the Advocate for defendants has filed the
pursis Exh.02 mentioning that defendant No. 1 was served, but died on
10.11.2020 the date of service of summons on defendant No. 1 is not
reflected in Pursis Exh. 02.
5. Be that as it may, the suit is at very initial stage. Provisions
of sub-rule 4 of Rule 4 of Order 22 of the Code of Civil Procedure confer
discretion of the Court either to exempt the plaintiff from bringing on
record the legal heirs of the defendants, who has failed to appear and
filed the written statement or who as filed written statement, but did
not contest the suit. In this case, the suit is at primary stage.
Considering the stage of the suit and that defendant Nos. 2 to 6 have
already informed the plaintiff about the death of defendant No. 1 and
existence of her LR’s, it is desirable that LR’s of deceased defendant No.
1 be brought on record. As already indicated the date of service of
summons on defendant No. 1 is not on record, in absence of which, it
cannot be said that defendant No. 1 willfully did not submit the written
statement before expiry of limitation for filing written statement. On
this point also, the application cannot be considered. Hence, the
following order.
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Order below Exh.3 ..3.. SU No. 1064-2020
ORDER
1. The application (Exh.03) is rejected.
2. The plaintiff to take steps.
(AJIT N. MARE)
Judge,
Date : 20.02.2021. City Civil Court, Gr. Bombay.
Dictated on : 20.02.2021
Transcribed on : 22.02.2021
Signed on : 24.02.2021
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Order below Exh.3 ..4.. SU No. 1064-2020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
24.02.2021 5.56 p.m. (Mrs. K.S.Bhosale)
(Stenographer)
Name of the Judge H.H.J. SHRI. AJIT. N. MARE
(Court Room No. 3)
Date of pronouncement of Order 20.02.2020
Order signed by P. O. on 24.02.2020
Order uploaded on 24.02.2020
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