Final Order 1

Order Details: Chamber summons
Pdf Text: 1 Common Order CS Nos.44718 & 201318
CNR No.
CNR No.
MHCC010031402018
MHCC010139752018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NOS.447 OF 2018 AND 2013 OF 2018
IN
SUIT NO.3622 OF 2008
(HIGH COURT SUIT NO.1040 OF 2008)
Babibai Moreshwar Patil & Ors. ...Plaintiffs.
V/s.
M/s. Om Enterprises & Ors. ...Defendants.
Appearances:
Ld. Adv. Mr. Gandhi for the plaintiffs.
Ld. Adv. Mr. Samant for the defendant nos.1, 3 and 4.
CORAM : HER HONOUR JUDGE
SMT. KALPANA S. HORE
COURT ROOM NO.14
DATED : 15th NOVEMBER, 2018.
COMMON ORDER
1. The plaintiffs have taken Chamber Summons no.447 of 2018 for
amendment and to bring legal heirs of defendant no.2 on record.
Plaintiffs have filed suit for cancellation, declaration and injunction
against the defendants in Hon'ble High Court. The said suit is
transferred to this Court in the year 2012.
2. Plaintiffs contention is that on 04.05.2011 Advocate for
defendant on instructions stated that defendant no.2 died on
12.11.2010 at Sawantwadi, due to which the plaintiffs had taken out
Chamber Summons No.927 of 2011 for bringing legal heirs of
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defendant no.2 on record. Thereafter, on 22.11.2011, plaintiffs were
directed to serve the said Chamber Summons No.927 of 2011 on the
legal heirs of defendant no.2.
3. Plaintiffs contention is that due to non appearance of the earlier
Advocate Mr. S. R. Mishra for the plaintiffs, the said Chamber Summons
No.927 of 2011 was dismissed for non prosecution on 30.11.2011.
Thereafter, as the pecuniary jurisdiction of this court was enhanced.
Suit was transferred from Hon'ble High Court to this Court and only
came on board for the first time on 31.10.2013 before this Hon'ble
Court.
4. Plaintiffs contention is that thereafter, on 14.06.2013 the
plaintiffs have taken out a notice of motion in Chamber Summons
No.927 of 2011 and sought leave to file Notice of Motion No.2093 of
2013 for restoration of Chamber Summons No.927 of 2011 and
accordingly, after obtaining said leave, registered the same with this
Hon'ble Court. On several occasion when the said notice of motion
came for hearing, however, due to ill health and negligence of the
earlier Advocate on record Late Mr. S. R. Mishra, the said notice of
motion was dismissed for default by this Hon'ble court on 03.02.2014
and subsequently, the suit was dismissed on 15.02.2014.
5. Plaintiffs contention is that as the plaintiffs suit was dismissed the
plaintiffs were no other option but to restore the suit. The plaintiffs
have taken Notice of Motion No.3160 of 2014 for restoration of suit,
which also came to be dismissed on 03.11.2014. Thereafter, the
plaintiffs have filed Appeal From Order No.527 of 2015.
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6. Plaintiffs contention is that during the pendency of the Appeal
From Order No.527 of 2015, the legal heirs of the deceased defendant
no.2 had executed a registered Deed of Cancellation cum Confirmation
dated 11.05.2015, in his favour being Constituted Attorney of the
plaintiff therefore, who is presently owner of the property. The legal
heirs of defendant no.2 had confirmed that the original plaintiffs had by
virtue of the Deed of Cancellation dated 29.03.1994, cancelled the
agreements dated 22.03.1985 and 09.03.1989 thereby also recorded
that the letters of termination and cancellation dated 15.07.1994
addressed by the plaintiff no.2 to the deceased defendant no.2 is valid,
subsisting and binding upon the legal heirs and representatives of the
deceased defendant no.2. The legal heirs of the deceased defendant
no.2 have also confirmed that the deceased defendant no.2 had
received payment made by him to the applicant. The legal heirs of
deceased defendant no.2 have also confirmed that Conveyance dated
05.06.2007 executed by the defendants in their own favour is not legal
and valid thus, plaintiffs right, title and interest obtained under the
Conveyance dated 26.10.2009 are valid, subsisting and binding upon all
the parties to the above suit and supersedes all the earlier agreements,
deeds and conveyances.
7. Plaintiffs further contention is that in view of the above change in
the circumstances which are connected and will be playing a crucial
role in the effective adjudication of the suit, it is in the interest of
justice, equality, parity and good conscience that Hon'ble Court may
with good indulgence may allow the present chamber summons to bring
the legal heirs of the deceased defendant no.2 on record.
8. Plaintiffs further contention is that it is pertinent to note that
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after hearing of the above facts of the dismissal of the suit due to
negligence of the Advocate Late Mr. S. R. Mishra, Hon'ble High Court of
Bombay in all fairness felt justified in restoring the suit to its original
file. The plaintiffs further contention is that it is pertinent to note that
it is only recently after the restoration of the suit, the applicants brought
the said fact of the dismissal of Chamber Summons No.927 of 2011 and
Notice of Motion No.2093 of 2013 to the notice of the present Advocate
on record and on their advise have taken out the present chamber
summons.
9. Plaintiffs further contention is that if chamber summons is not
allowed, plaintiff will suffer grave, irreparable loss, harm and injury
which cannot be compensated in terms of money. If the reliefs are
granted, no loss, harm and injury will be caused to the defendants.
With this, plaintiffs prayed for bringing legal heirs of defendant no.2 on
record and to amend the plaint as per schedule.
10. Defendant nos.1, 3 and 4 have filed their say. Their contention is
that applicant in present chamber summons has no independent right to
move present chamber summons for the purpose of amendment i.e.,
substituting himself in place of plaintiffs as well as to amend the plaint
as per schedule attached to affidavit in support of Chamber Summons.
It further contended that present chamber summons is not moved by
the plaintiffs and therefore, applicant cannot sought the propose
amendment by replacing the original plaintiffs with himself. It further
contended that applicant has already filed his previous Chamber
Summons bearing no.220 of 2018 and which is pending for argument.
Applicant has suppressed the material facts from the Hon'ble Court with
intension to play fraud upon Court. The applicant has separate and
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independent remedy for his alleged rights. There is bar of resjudicata
for taking out present chamber summons. It further contended that on
15.04.2011, Advocate for defendant nos.2 to 4 informed the Hon'ble
Court that defendant nos.2 has expired two months ago therefore,
plaintiffs were directed to make note and to take appropriate steps as
per order dated 15.11.2011 passed by his Lordship Mr. D.G. Karnik.
Thereafter, on 04.05.2011 when Advocate for plaintiffs present before
Hon'ble Court, Advocate on instructions submitted that defendant no.2
died on 22.11.2010 at Sawantwadi and therefore, Hon'ble Court
directed to plaintiffs to take necessary steps. Thereafter, the plaintiffs
moved Chamber Summons No.927 of 2011 for bringing legal heirs of
defendant no.2. Thereafter, passing the order dated 22.11.2011 by his
Lordship Mr. S.C. Dharmadhikari, directed plaintiffs to serve the copy of
Chamber Summons No.927 of 2011 and its affidavit in support
personally to legal heirs of defendant no.2 and plaintiffs could not
complied the orders of the Hon'ble Court and failed to present before
Hon'ble Court therefore, his Lordship Mr. S. J. Kathawalla dismissed the
said chamber summons on 30.01.2012 for want of prosecution.
Thereafter, present suit transferred from Hon'ble High Court to this
Court. Defendants further contention is that on 13.02.2013 this Court
passed the order and thereby abated the suit against defendant no.2.
Thereafter, plaintiffs have taken Notice of Motion No.2093 of 2013 for
restoration of Chamber Summons No.927 of 2011, to which these
defendants have filed their reply. However, as plaintiffs did not
prosecute the said Notice of Motion No.2093 of 2013 for restoration of
Chamber Summons No.927 of 2011, the same was dismissed on
03.02.2014.
11. Defendants further contentions is that till today neither plaintiffs
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nor applicant have approached this Court for setting aside abatement
order against defendant no.2 and therefore, present chamber summons
on behalf of applicant to bring the legal heirs of defendant no.2 on
record is not maintainable is eyes of law.
12. Defendants further contention is that without proper application
for condoning delay for setting aside abatement orders, the present
chamber summons is not maintainable and therefore, delay cannot be
condoned. Applicant cannot seek the directions to amend the suit as
per proposed amendment shown in schedule attached to chamber
summons. It further contended that applicant cannot take defence of
alleged ill health and negligence of earlier Advocate on record late Mr.
S. R. Mishra and cannot blame the said deceased Advocate for dismissal
of suit as well as dismissal of said notice of motion. Late S. R. Mishra
expired on 27.07.2017. With this, defendants prayed for dismissal of
chamber summons.
13. After hearing on Chamber Summons No.447 of 2018, the
plaintiffs have filed Chamber Summons No.2013 of 2018 for condoning
of delay for setting aside abatement as well as setting aside abatement
order dated 13.02.2013. In this chamber summons, the plaintiffs Power
of Attorney filed affidavit in support of chamber summons and raised
the similar contentions which are raised in Chamber Summons No.447
of 2018.
14. Defendant nos.1, 3 and 4 have filed reply and contended that
reply in Chamber Summons No.447 of 2018 be considered in this
chamber summons. It also contended that after hearing of Chamber
Summons No.447 of 2018, this chamber summons is filed and there is
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no provision in law to file fresh chamber summons to set aside
abatement order after hearing of main chamber summons for bringing
legal heirs on record and especially when same is kept for order. It
further contended that no chamber summons for bringing legal heirs on
record can be heard without setting aside abatement order. It further
contended that admittedly, the defendant no.2 died on 12.11.2010 and
therefore, suit against defendant no.1 is automatically stand abated
against defendant no.2 on 12.02.2011 as per Article 120 of Limitation
Act and therefore, said abatement has to be set aside within further 60
days from 12.02.2011 i.e., on or before 13.04.2011 as Article 121 of the
Limitation Act. There is delay of 2,757 days from 12.02.2011 for filing
present chamber summons. From 12.02.2011, the plaintiffs have
participated in the present suit proceedings on various occasions but the
plaintiffs have not given any satisfactory reason for condoning delay for
setting aside abatement order. There is no prayer in present chamber
summons for condoning delay for setting aside abatement order against
the defendant no.2. With this, defendants prayed for dismissal of
chamber summons.
15. Again heard Advocate for both the parties in Chamber Summons
No.2013 of 2018.
16. After perusal of pleadings of both the parties, admitted fact is that
plaintiffs have filed suit for cancellation, declaration and injunction
against the defendants. Originally suit was filed in the Hon'ble High
Court. Plaintiffs have taken Notice of Motion No.1393 of 2008 before
the Hon'ble High Court. In that notice of motion on 15.04.2011
Advocate for defendant nos.2 to 4 informed the Court that defendant
no.2 Rajaram Ramchandra Parulekar, has expired two months ago so,
plaintiffs are directed to make note and to take appropriate steps and
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adjourned for two weeks. On 04.05.2011 again Advocate for defendant
no.4 made submission before the Court about the death of defendant
no.2 on 22.11.2010 so, plaintiff is directed to take necessary steps and
stand over to 08.06.2011. Thereafter, plaintiffs have taken Chamber
Summons No.927 of 2011 for bringing legal heirs of defendant no.2 on
record. In the said chamber summons by order dated 22.11.2011 direct
that chamber summons will have to be served personally on legal heirs.
Thereafter, chamber summons was dismissed on 30.01.2012 for want of
prosecution. It is an admitted fact that thereafter, suit is transferred to
this Court in the year, 2012 2013.
17. It is an admitted fact that plaintiffs have taken Notice of Motion
No.2093 of 2013 for restoration of Chamber Summons No.927 of 2011
and accordingly, leave granted to register notice of motion. It is an
admitted fact that the said Notice of Motion No.2093 of 2013 was
dismissed in default by this court on 03.02.2014 and thereafter, suit
itself was dismissed on 15.02.2014. It is an admitted fact that Advocate
S.R. Mishra, representing plaintiffs till dismissal of suit. It is an
admitted fact that plaintiffs have taken Notice of Motion No.3160 of
2014 for restoration of suit, which also came to be dismissed on
03.11.2014. It is an admitted fact that then plaintiffs have filed Appeal
From Order No.527 of 2015 before the Hon'ble High Court. The said
appeal was allowed on 08.12.2017 and suit was restored for hearing.
After restoration of suit, matter was taken on board on 29.01.2018 and
on the same day, plaintiffs filed draft chamber summons for taking
necessary steps for bringing legal heirs of defendant no.2 on record and
the said chamber summons is numbered as 447 of 2018.
18. Advocate for plaintiffs submitted that as per admitted fact as well
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as Advocate for defendant nos.2 to 4 informed before the Hon'ble High
Court about the death of defendant no.2, the plaintiffs have taken
Chamber Summons No.927 of 2011 for bringing legal heirs of
defendant no.2 on record. However, said chamber summons was
dismissed for want of prosecution on 30.01.2012. Thereafter, matter is
transferred to this court. The plaintiffs have taken Notice of Motion
No.2093 of 2013 for restoration of Chamber Summons no.927 of 2011.
However, due to ill health and negligence of earlier Advocate on record
Late Mr. S. R. Mishra, the said notice of motion was dismissed for
default by this Hon'ble court on 03.02.2014 and subsequently, suit was
also dismissed on 15.02.2014 then, plaintiffs have no option but to file
Appeal From Order and accordingly, plaintiffs have filed Appeal From
Order No.527 of 2015, which came to be allowed on 08.12.2017 and
after restoration of suit, the plaintiffs have again taken Chamber
Summons No.447 of 2018 for bringing legal heirs of defendant no.2 on
record and amendment as legal heirs of defendant no.2 had executed
Confirmation Deed. He further submitted that there is some delay due
to bonafide mistake on the part of Advocate S. R. Mishra and Advocate
Prashant More. Advocate S. R. Mishra filed affidavit dated 04.04.2016
filed before Hon'ble High Court in Appeal From Order No.527 of 2015
so, it clearly shows that there was bonafide mistake or negligence on
the part of Advocate S. R. Mishra and for that plaintiffs cannot suffer.
He further submitted that in Chamber Summons No.447 of 2018,
plaintiffs have prayed to condone delay and to allow to bring legal heirs
of defendant no.2 on record. He further submitted that there is no
specific prayer for setting aside abatement so, plaintiffs have taken
another Chamber Summons No.2013 of 2018, which can be
continuation of Chamber Summons No.447 of 2018. He further
submitted that plaintiffs have properly explained the delay for
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condonation of delay for setting aside abatement and for bringing legal
heirs on record. He further submitted that provisions contained in
Order 22 are not to be construed as a rigid matter of principle but must
ever be viewed as a flexible tool of convenience in the administration of
justice. Such applications deserved to be allowed even dehors the
cause of delay in filing the applications keeping in view the serious
manner it would otherwise jeopardize an effective adjudication on
merits, the Rights of other remaining appellants for no fault of them. He
relied on 2003 AIR(SC) 2588.
19. Advocate for plaintiffs submitted that first Chamber Summons
No.927 of 2011 was not dismissed on merits so, dismissal order cannot
operate resjudicata, relied upon State of U.P. and Anr., V/s. Jagdish
Saran Agrawal and Ors., MANU/SC/8306/2008.
20. Advocate for defendants submitted that as per Article 120 of the
Limitation Act, period of limitation is 90 days to bring legal heirs on
record from the death of the plaintiff, appellant, defendant or
respondent, as the case may be. He submitted that in the present case,
the plaintiffs have not filed an application to bring legal heirs of
defendant no.2 on record within 90 days so, automatically suit abated.
He submitted that as per Article 121 of the Limitation Act, period of
limitation is sixty days is for setting aside an abatement and limitation
period begins from the date of abatement. He submitted that as
plaintiffs Chamber Summons No.927 of 2011 was dismissed for non
prosecution on 30.01.2011 suit automatically abated against defendant
no.2 so, chamber summons for setting aside abatement is barred by
limitation. He further submitted that plaintiffs have taken Notice of
Motion No.2093 of 2013 for restoration of Chamber Summons No.927
of 2011, which also dismissed for default on 03.02.2014. Then,
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plaintiffs have not taken steps so, plaintiffs chamber summons to set
aside abatement is barred by limitation. He further submitted that
there is no proper explanation given for condonation of delay for setting
aside abatement. He further submitted that in Chamber Summons
No.447 of 2018, plaintiffs have not specifically prayed for condonation
of delay for setting aside abatement as well as to set aside abatement
and without claiming such reliefs of condonation of delay for setting
aside abatement and to set aside abatement, plaintiffs Chamber
Summons No.447 of 2018 is not maintainable. He further submitted
that condonation of delay – sufficient cause liberal and justice oriented
approach is required to be adopted – if, however, explanation offered is
found to be concocted and if applicant is found to be thoroughly
negligent in presenting its cause, delay cannot be condoned. He relied
upon the judgments in Maniben Devraj Shah V/s. Municipal
Corporation of Brihan Mumbai, 2012 (3) All M.R. 450
(S.C.),Balwant Singh (Dead) V/s. Jagdish Singh & Ors., 2010(6) All
M.R. 480, Pramila w/o. Dinkarrao Tathe (Deleted) and others V/s.
Shantabai alias Shalinibai wd/o. Ramkrishna alias Bhaurao Tathe
and others, 2008(1) Mh. L.J., 830 and Bhalchandra Ganesh Naik &
Anr. V/s. Sona Hotel & Ors. 2009(4) All MR 349
21. Ranchod Pandya, is Constituted Attorney of plaintiffs who
purchased the property during the pendency of suit from plaintiffs, so
he has right to file an application as a Constituted Attorney of plaintiffs.
22. Admittedly, Advocate for defendant nos.2 to 4 informed to the
Court on 15.04.2011 that defendant no.2 had expired two months ago,
so, as per Order 22 Rule 10A of Code of Civil Procedure, Duty of
pleader to communicate to Court death of a party, so, the information
about death of client by Advocate for defendants, plaintiffs to take steps
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to bring legal heirs of defendant. Accordingly, Advocate for plaintiffs
has taken Chamber Summons No.927 of 2011, bringing legal heirs of
defendant no.2 on record. However, the said chamber summons was
dismissed for want of prosecution on 30.01.2012. Thereafter, suit was
transferred to this Court. Plaintiffs have taken Notice of Motion
No.2093 of 2013 for restoration of Chamber Summons No.927 of 2011,
which came to be dismissed for default on 03.02.2014 so, it clearly
shows the plaintiffs have taken steps properly to bring legal heirs of
defendant no.2 on record. However, plaintiffs Notice of Motion
No.2093 of 2013 for restoration of Chamber Summons No.927 of 2011
was dismissed for default and thereafter, suit was dismissed for default
on 15.02.2014, the plaintiffs have no option to file notice of motion for
setting aside dismissal of suit and plaintiffs have taken notice of motion
for restoration of suit, which also came to be dismissed on 03.11.2014
therefore, plaintiffs have filed Appeal From Order No.527 of 2015,
which came to be allowed on 08.12.2017 so, plaintiff prosecuting his
cause. It is an admitted fact that Advocate S. R. Mishra filed affidavit in
Hon'ble High Court that due to his mistake and negligence suit
dismissed so, I have no hesitation to accept the plaintiffs contention that
due to mistake and negligence of Advocate S.R. Mishra (who died in the
year 2017). Plaintiffs suit was dismissed in the year 2014. It is a fact
that after restoration of suit, plaintiffs immediately have taken Chamber
Summons No.447 of 2018 for bringing legal heirs of defendant no.2 on
record and amendment that legal heirs of defendant no.2 had executed
conveyance deed in favour of plaintiffs. It is a fact that in Chamber
Summons plaintiffs claim is condonation of delay but not specifically
prayed relief setting aside abatement.
23. I find as per Order 22 Rule 4 of Code of Civil Procedure, when
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one or more defendants died, legal heirs are to be brought on record
within prescribed period of limitation and if legal heirs are not brought
on record suit is abated against deceased defendant. As per Order 22
Rule 9 of Code of Civil Procedure, effect of abatement where a suit
abates or is dismissed under this Order, no fresh suit shall be brought
on the same cause of action so, legal rights accrued to the legal heirs of
deceased defendant. As per Order 22 rule 4(5) of Code of Civil
Procedure, plaintiff was ignorant of the death of a defendant, and could
not, for that reason, make an application for the substitution of the legal
representative of the defendant under this rule within the period
specified in the Limitation Act and the suit has, in consequence, abated
and the plaintiff applies after expiry of the period specified therefore, in
the Limitation Act for setting aside the abatement and also for the
admission of that application under section 5 of that Act on the ground
that he had, by reason of such ignorance, sufficient cause for not
making the application within the period specified in the said Act, the
Court shall, in considering the application under the said section 5,
have due regard to the fact of such ignorance, if proved. It means there
is procedure prescribed under Order 22 Rule 4(5) to file an application
for condonation of delay to set aside abatement and for that Article 121
of the Limitation Act, prescribed the limitation so, plaintiffs ought to
have file an application for condonation of delay to bring legal heirs on
record and to set aside abatement. If he not followed the procedure
and simply application to bring legal heirs on record then, application
cannot be entertained and maintainable so, the submissions made by
the Advocate for defendants that unless the plaintiffs prayed for
condonation of delay for setting aside abatement and to set aside
abatement, only chamber summons for bringing legal heirs on record is
not maintainable is acceptable. Earlier chamber summons was
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dismissed for default so, principle of resjudicata for deciding this
chamber summons is not applicable. I find as per sections 151 and 153
of Code of Civil Procedure, the Court has inherent power to make such
orders as may be necessary for the ends of justice, or to prevet abuse of
the process of the Court so, in the present case as the plaintiffs have
filed Chamber Summons No.2013 of 2018 for specific relief of
condonation of delay in setting aside abatement and to set aside
abatement before the order of Chamber Summons No.447 of 2018 so,
plaintiffs relief to condone delay in setting aside abatement and to set
aside abatement is accepted. I also find if the legal heirs of defendant
no.2 are not brought on record, it is harm to plaintiffs. However, I find
some costs is to be imposed on plaintiffs and pay to the defendant
nos.1, 3 and 4, which will compensate to them. With this, I allowed
both chamber summons on costs of Rs.5,000/ pay to defendant nos.1,
3 and 4. Accordingly, I proceed to pass the following order :
O R D E R
1 Chamber Summons No.2013 of 2018 is allowed.
2. Delay is condoned for setting aside abatement order dated
13.02.2013 and abatement is set aside.
3. Chamber Summons No.447 of 2018 is allowed.
4. Plaintiffs to bring legal heirs of defendant no.2 on record and also
amend the plaint as per schedule.
5. Plaintiff to pay cost of Rs.5,000/ to defendant nos.1, 3 and 4.
6. Chamber Summons Nos.2013 of 2018 and 447 of 2018 stands
disposed of accordingly.
( KALPANA S. HORE )
Judge,
Dated : 15/11/2018 City Civil Court, Gr. MUMBAI
Dictated on : 15/11/2018
Transcribed on : 15/11/2018
Signed on : 15/11/2018
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
19.11.2018 12.16 p.m. ARUN ANNAMALAI MUDALIYAR
Name of the Judge (With Court
Room No.)
HHJ Smt. K. S. HORE (CR 14)
Date of Pronouncement of
JUDGEMENT /ORDER
15.11.2018
JUDGEMENT /ORDER signed by
P.O. on
15.11.2018
JUDGEMENT /ORDER uploaded
on
19.11.2018
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