Final Order 1

Order Details: Chamber summons
Pdf Text: .1. CH/S. No. 639/2019 in
L.C. Suit No. 1443/2016
MHCC010032062019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
CHAMBER SUMMONS NO. 639 OF 2019.
IN
L.C. SUIT NO. 1443 OF 2016.
Mr. Frances Micheal Dsouza and Another........... …. PLAINTIFFS.
V/s.
M.C.G.M and Another. ..…………………………. .… DEFENDANTS.
CORAM : Shri. A.G. Santani.
(Court Room No.11).
DATED : 28th March, 2022.
APPEARANCES :
Mr. Rajesh Singh, the Ld. Advocate for the Plaintiffs.
Adv. Sunil C. Khandagale, the Ld. Advocate for Defendant No.1.
*****
01. Plaintiff No.2 has taken out the present Chamber Summons
(for brevity Chamber Summons is referred to as Ch/s.) for condonation
of approximate delay of 150 days, in preferring this Ch/s. for bringing
legal representatives of deceased plaintiff No.1 Mr. Frances D’souza and
for the ancillary reliefs. Perused the Ch/s. and the say filed by defendant
No.1. Heard both the sides.
02. Considering the record, the points for determination, along-
with my findings and the reasons therefor, are as under :
Sr. No. POINTS FINDINGS
(i). Whether the legal representatives of
late plaintiff No. 1 are entitled for their
substitution in the suit ?.......…….......... .....Yes.
(ii). What Order ? .............…....................... …. As per final Order.
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.2. CH/S. No. 639/2019 in
L.C. Suit No. 1443/2016
REASONS FOR FINDINGS
AS TO POINT NO.1 :
03. By filing this Chamber Summons, plaintiff No. 2 came with
the case that during pendency of this suit, on 19.07.2018, plaintiff No.1
died at Mumbai, leaving the L.Rs. referred to in the Schedule annexed.
After his demise, his wife was facing some medical issues and she was
hospitalized for long period. Thereafter, she was under constant medical
treatment. She was upset and hence, could not attend the matter to join
his L.Rs. as parties to this suit. As such, there had been delay of @ 150
days. This delay was not intentional or deliberate. Along-with this Ch/s,
plaintiff No.2 also filed copy of death certificate of late plaintiff No.1 on
the record. Defendant No.1 objected the Ch/s. mainly on the count that
this delay is not justified and therefore, the same can not be condoned.
04. Having considered the record, at the out set, it is pertinent
to note that by filing this suit, the plaintiffs prayed for declaration that
defendant No.2 carried unauthorized construction on 1st floor. They also
sought for the perpetual injunction, restraining defendant No.2 to carry
out the said unauthorized construction, addition or alteration in the suit
premises along-with the other ancillary reliefs. The record shows that as
on today, the suit is pending for hearing on Notice of Motion, originally
moved by the plaintiffs. Being so, it can safely be arrived at that the suit
is at initial stage and the trial is still to commence. Needless to say that
in view of reliefs sought on trial, even after demise of plaintiff No.1, the
right to sue survives in favour of plaintiff No.1. And, consequently, even
in favour of the L.Rs. of late plaintiff No.1. Hence, the suit would not be
abated. At the same time, after demise of plaintiff No.1, his L.Rs. would
be the necessary parties in the suit. That apart, even because of delay in
filing this Ch/s., no substantial rights could be accrued in favour of the
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.3. CH/S. No. 639/2019 in
L.C. Suit No. 1443/2016
defendants. Simultaneously, plaintiff No.2 could justify this delay, which
is certainly not an inordinate one. On this background, to adjudicate the
suit issues effectively, I am of the opinion that this Ch/s. needs is to be
allowed. Hence, I answered point No. 1 in the affirmative and in answer
to point No. 2, I pass the following Order :
-: O R D E R :-
(i). Chamber Summons No. 639/2019 is made absolute in
terms of prayer Clause (a) and (b).
(ii). Plaintiff No.2 is called upon to carry out the proposed
amendment / substitution by bringing L.Rs. of Deceased
plaintiff No.1 on the record, positively within two weeks
from passing of this order.
(iii). Chamber Summons No. 639/2019, accordingly, stands
disposed off.
Sd/-
{A.G. Santani}
Mumbai. Ad-hoc Judge,
Dated : 28.03.2022. City Civil Court, Mumbai.
Dictated on : 28.03.2022.
Transcribed on : 28.03.2022.
Signed on : 28.03.2022.
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.4. CH/S. No. 639/2019 in
L.C. Suit No. 1443/2016
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT /ORDER”
On 28.03.2022. at 3.00 p.m. Mrs. S.R.Mejari
UPLOADED DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court Room no.) H.H.J. A.G. Santani
C.R. No.11
Date of Pronouncement of
Judgment/Order
28.03.2022
Judgment /Order signed by P.O. on 28.03.2022
Judgment/Order uploaded on 28.03.2022
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