Final Order 1

Order Details: Chamber summons
Pdf Text: CS 673-2019 in C.C. Suit no. 9863-1987
H.C.Suit No. 1364 of 1987
1 Date : 21.11.2019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
CHAMBER SUMMONS NO. 673 OF 2019
IN
C.C.SUIT NO. 9863 OF 1987
(H.C. SUIT NO. 1364 OF 1987)
(CNR NO.MHCC010034292019 )
Keshav Dattatray Malondkar & Anr. .. Plaintiffs
Versus
Gopinath Dadu Kini & Ors.
defendants.
Appearances :
Plaintiff and his advocate absent.
Adv.Prashant Jadhav for defendant no.2 to 5 present.
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 7
Date : 21.11.2019
ORDER
1. The plaintiffs have filed instant Chamber Summons for
deleting the name of defendant no. 1 and to carry out necessary
amendment in the plaint as per schedule.
2. It is contended by the plaintiffs that defendant no. 1 expired
on 06.10.2011. The defendants no. 3 is one of the legal heir. On
28.01.2019 the defendant no. 3 apprised the aforesaid fact and
filed Death Certificate. On that day they came to know about the
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CS 673-2019 in C.C. Suit no. 9863-1987
H.C.Suit No. 1364 of 1987
2 Date : 21.11.2019
fact of death of defendant no. 1.
3. It is contended by the plaintiff that right to sue survived
against the Legal Representatives of the defendant no. 1. There is
no delay as such in filing aforesaid application. If there is delay, it
may be condoned. There is no lapses on their part to file the
instant application. Hence, the plaintiff prayed for allowing the
Chamber Summons.
4. Per contra advocate for defendant no. 2 to 5 opposed
application by filing reply. It is contended by the defendants that
factum of death was intimated by the Counsel on 08.04.2015. The
fact of death of defendant no. 1 was again made known to the
plaintiff in the reply filed to the Chamber Summons No. 1066 of
2014. However, inspite of that the plaintiff failed to take
appropriate steps within time. Hence, the suit is abated against
defendant no. 1. The defendants prayed for dismissal of the
Chamber Summons.
5. Heard both the sides. Perused Chamber Summons, reply as
well well as record. It is admitted fact that the defendant no. 1 has
expired on 06.10.2011. It appears from the record that the
advocate of defendant no. 2 to 5 filed pursis on 08.04.2015 but
inadvertently, it was not taken on record and it was not exhibited.
Therefore, the factum of death of defendant no. 1 was not brought
to the notice of plaintiff.
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CS 673-2019 in C.C. Suit no. 9863-1987
H.C.Suit No. 1364 of 1987
3 Date : 21.11.2019
6. The defendants further contended that the fact of death was
intimated in the reply of Chamber Summons No. 1066 of 2014. I
have perused said reply, the reply does not clearly speak out the
date when the defendant no. 1 has expired. On perusal of the
Roznama, It appears that the advocate for defendant no. 2 to 5 on
06.10.2018 filed death Certificate alongwith the additional Written
Statement which was taken on record. They have filed death
certificate for the first time on 06.10.2018. Therefore, in my view,
the reasons assigned by the plaintiff appears to be just and proper.
The plaintiff had no occasion to get the knowledge about the fact
of death of defendant no. 1.
7. The plaintiff filed suit for specific performance of the
Agreement which was executed between them and defendant no.
1. The right to sue survived against the Legal Representatives of
defendant no. 1. Therefore, in my view, the Chamber Summons
needs to be allowed. Thus, I proceed to pass the following order :
ORDER
1. Chamber Summons No. 673 of 2019 is hereby made absolute
in terms of prayer clause (a) and (b).
2. The plaintiff is hereby allowed to carry out necessary
amendment within 14 days from the date of order.
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CS 673-2019 in C.C. Suit no. 9863-1987
H.C.Suit No. 1364 of 1987
4 Date : 21.11.2019
3. Chamber Summons No. 673 of 2019 is disposed off
accordingly.
(A.H.Laddhad)
Judge,
City Civil and Sessions Court,
Dated : 21.11.2019 Greater Bombay.
Dictated on : 21.11.2019
Typed on : 21.11.2019
Draft Submitted on : 21.11.2019
Checked on : 22.11.2019
Signed on : 22.11.2019
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CS 673-2019 in C.C. Suit no. 9863-1987
H.C.Suit No. 1364 of 1987
5 Date : 21.11.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
22/11/2019 at 4.00 p.m. (Ms. V.V.Sawant)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
no.)
Shri A.H.LADDHAD
(C.R. No.7)
Date of Pronouncement of
JUDGMENT/ ORDER
21/11/2019
JUDGMENT/ORDER signed by P.O.
on
22/11/2019
JUDGMENT/ORDER uploaded on 22/11/2019
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