Final Order 1

Order Details: Chamber summons
Pdf Text: CS 457/2020 in M.A.83/17 1 IN L.C. SU NO.3933/1984
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
CHAMBER SUMMONS NO.457 OF 2020
CNR NO.MHCC010029762020
IN
MISCELLANEOUS APPLICATION NO.83 OF 2017
CNR NO.MHCC010107922017
IN
L.C. SUIT NO.3933 OF 1984
CNR NO.MHCC010001221984
1. Hirji Keshavji Rangawala Deceased
1(a) Ketan Hirji Rangawal and Ors. ]… Applicants
IN THE MATTER BETWEEN
Premji Ratansi Gada and Ors. ]...Plaintiffs
Versus
Hirji Keshavji Rangawala Deceased
1(a) Ketan Hirji Rangawala and Ors. ]...Defendants
Adv. Devrukhkar h/f Adv. Londhe for respondent No.1A, 1B and 2A
for plaintiff.
Adv. Ansari for respondent Nos.3 and 5 to 10
Adv. Rawade for respondent No.4 / MCGM.
CORAM : HIS HONOUR JUDGE
Shri S.D.Kulkarni
(Court Room no.4)
DATED : 26th April, 2022
O R A L O R D E R
1. Perused Chamber Summons, affidavit in support thereof,
documents filed by both the parties. Heard both the advocates at length.
2. The contention of the respondents that in cross
examination of PW1 i.e. applicant No.1., it is come on record that
applicant Nos.3 and 4 are not alive and they are died long back. The
applicant No.1 has not made any application till today to bring legal
heirs of applicant Nos.3 and 4 on record. Therefore, the contention of
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respondents that the present Miscellaneous Application is abated in
view of the Order 22 of the Code of Civil Procedure Code. Therefore,
the respondents prayed that the Miscellaneous Application be abated as
applicant failed to bring on record the L.R.’s of applicant Nos.3 and 4
within time limit.
3. The application is opposed by the applicant No.1 on a
ground that it is a matter of record that the present applicant has filed
the L.C. Suit No.3933 of 1984. It is also undisputed fact that the
original plaintiff No.4, had died in the month of April, 1996. The
contention of the applicants that during pendency of the suit in
February 1997 there was family arrangement in between the applicants
and their family members therefore, married sister of applicant No.1,
have relinquished their rights, title and interest in the suit property. It is
further submitted by the applicant that the original plaintiff No.3 was
expired on 01.02.2011 but at that time the hearing of the suit was
concluded. Therefore, it is not necessary for the plaintiff to bring L.R.’s
of plaintiff No.3, on record. It is further alleged by the applicant that in
view of the provision of Order 22 Rule1 of the Code of Civil Procedure
Code, 1908 the right to sue survive and the same is exclusively available
to the applicant No.1., as to right the sue survive therefore, suit will not
be abated and there in question of abatement of present M.A. Hence,
applicant is prayed for rejection of application.
4. Perused application, say filed by the applicant. Heard both
the advocates at length.
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5. The advocate for the respondent No.1(a),1(b),2(a),2(b)
submitted that the applicant No.3, and 4 had died long back. It is come
on record that applicant No.4 died in 1996 and applicant No.3 died in
the year 2011 so, till today applicant has not brought on record the
L.R.’s of deceased applicants. The present application being
continuation of the suit liable to be abated. The advocate for the
respondent relied on the ratio laid down in the case of Smt. Sarojdevi
and Others V/s. Charushil and Others, AIR 1986 BOMBAY 315
therein it is held that
25. It is, therefore, the substantive law such has to be looked into to
find out whether a lis is constituted properly or remains to be
constituted with all the necessary parties on record. So that it may be
disposed of by the Court. It is therefore, that when a coplaintiff being
a party to a joint and indivisible contract dies and his legal
representatives are not brought on record within the time prescribed,
the suit does not remain properly constituted and becomes liable to be
dismissed as a whole as abated in its entirety.
26. In the instant case, therefore, one of the plaintiffs having died
during the pendency of the suit the contract in favour of the plaintiffs
being joint and indivisible the suit abated in its entirety when the
legal representative of the deceased plaintiff were not brought on
record within the time either as plaintiffs or as defendants.
6. The advocate for the respondent further relied on the ratio
laid down in the case of Balwant Singh (Dead) V/s. Jagdish Singh
and Ors. (2010) 8 Supreme Cases 685, therein the Hon’ble Supreme
Court held that the necessary of liberal interpretation has to be taken
for setting aside the abatement of the suit and condonation of delay,
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even if sufficient cause has to be received liberal construction. It must
squarely falls with the concept of reasonable time and proper conduct of
the party concerned. On relying the above observation the advocate for
the respondent submitted that the plaintiff has not mentioned the cause
why he has not brought L.R.’s of deceased original plaintiff Nos.2 and 3
on record.
7. The advocate for the respondents further submitted non
implements of proper parties is amounts to suppression of material facts
and caused of suppression of material facts if prejudice cause to the
respondent, the applicant is not entitled for the further relief. Therefore,
the applicant can not be alleged to claim any bonafide. The respondents
as parties in that Writ Petition or non disclosure of earlier order, it was
deliberate suppression of material that and clause prejudice for
respondent. The advocate for the respondent further relied on the ratio
laid down in the case of Budh Ram and Ors. V/s. Bansi and Ors.
(2010) 11 Supreme Court Cases 476 therein
Present appellants also claimed title over suit land by way of adverse
possession – Death of Respondent 4 during pendency of appeal –
Effect – Held, once a decree had been passed in favour of Respondent
4, a right had vested in her favour and on her death vested right
devolved upon her heirs – Appeal against Respondent 4, stood abated
– High Court rightly reached conclusion that there was a possibility
for appellate court to reverse judgment of trial court and in such an
eventuality, there could have been two contradictory decrees, one in
favour of Respondent 4 and other in favour of appellant.
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8. Therefore, the advocate for the respondent submitted that
the present Miscellaneous Application is not tenable. The Miscellaneous
Application abated as applicant No.1 has suppressed that 3 daughters of
E. P. Gada is alive. The plaintiff has suppressed the family arrangement
dated 14.02.1997 from the trial court. The applicant has suppressed
that the plaintiff No.2 to 4 has relinquished their share, therefore, there
names be deleted. Thus, the judgment and decree passed on 10.02.2011
without any legal heirs of applicant Nos.3 and 4, on record and decree
was passed in favour of the dead persons therefore is null and void.
9. On perusal of the application and say, documents filed on
record, I am of the opinion that it is necessary to go through the
relevant provision of Order 22 of the Code of Civil Procedure, 1908.
Therefore, in this case Order 22 Rule 2 is relevant. The above provision
reads as under :
“Where there are more plaintiffs or defendants than one, and
any of them dies, and where the right to sue survives to the
surviving plaintiff or plaintiffs alone, or against the surviving
defendant or defendants alone, the Court shall cause an
entry to that effect to be made on the record, and the suit
shall proceed at the instance of the surviving plaintiff or
plaintiffs, or against the surviving defendant or defendants”.
10. So, whether the Miscellaneous Application still abate or not
for that it is necessary to go through the nature of the proceeding.
11. The short story of the suit is that the father of the plaintiff
was tenant and residing in the suit property. The original plaintiff No.1
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to 3 are the brothers and plaintiff No.4 is the mother. The suit property
became dilapidated therefore, defendant / MCGM issued notice to the
plaintiff being occupier of the suit property. The suit is filed by the
plaintiff for getting alternate accommodation and compensation. The
suit is decreed and plaintiffs are held eligible for alternate
accommodation and also held entitled for mesne profit, for better
understanding, I have reproduced the operational part of the judgment
so, applicants claiming tenants of the original premises. They have
seeking relief for alternate accommodation and compensation. So,
considering the nature of the suit it can not be said that all the plaintiffs
having joint and indivisible party to the suit having joint indivisible
right / share in the suit property. Therefore, after the death of one party
the right to sue does not survive on surviving plaintiff in that case the
suit is liable to be dismissed as a whole as abated in its entirety.
12. Here in this case it is not a joint and indivisible right. On
the other hand the right to sue survive on the surviving plaintiff as well.
Therefore, in my opinion the right to sue survive on surviving plaintiff
therefore, this Miscellaneous Application will not be abated as surviving
applicant entitled to proceed with the matter as right to sue survive.
The original plaintiff claiming tenancy right in the suit premises. It is
the case of the plaintiff that the father of the plaintiff namely Hasand G.
Gada was the original tenant. So, here continuing tenancy it is not
necessary to bring on record all the legal heirs on record. In such a case
anyone who is legal representative of the deceased on record is
sufficient. Here in this case though the original plaintiff and applicant
No.3 and 4 died but surviving plaintiff is entitled to continue the suit
being legal representative of the deceased applicant therefore,
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considering the nature of the proceeding in my opinion the
Miscellaneous Application will not be abated. Considering this I pass the
following order:
ORDER
1. Chamber Summons No.457 of 2020 stands rejected.
2. Chamber Summons No.457 of 2020 in Miscellaneous Application
No.83 of 2017 in L.C. Suit No.3933 of 1984 is disposed of
accordingly.
(S.D.Kulkarni)
Adhoc Judge,
City Civil Court,
Date : 26.04.2022 Gr. Mumbai.
Dictated on : 26.04.2022
Transcribed on : 27.04.2022
Signed by HHJ on: 30.04.2022
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 11.00 a.m.
NAME OF STENOGRAPHER : Mrs. J.S. Chavan
Name of the Judge (With Court
Room no.)
HHJ Shri. S.D.Kulkarni
C.R. no.04
Date of Pronouncement of
JUDGMENT/ORDER
26.04.2022
JUDGMENT/ORDER signed by
P.O. on
27.04.2022
JUDGMENT/ORDER uploaded
on
09.05.2022
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