Final Order 1

Order Details: Chamber summons
Pdf Text: MHCC010036662018 Presented on 16/03/2018
Registered on 17/03/2018
Decided on 10/06/2024
Duration 06Y: 02M: 25D
IN THE CITY CIVIL COURT AT MAZGAON, MUMBAI
CHAMBER SUMMONS NO. 519 OF 2018
IN
SUIT NO. 2898 OF 2010
(HIGH COURT SUIT NO. 89 of 2010)
M/s. Raj Enterprises ]...Applicant/Plaintiff
V/s. ]
1. Tahir Husain Enterprises & Ors. ]
1(a) Pushpa Sitaram Chaudhari & Ors. ]...Defendants
And ]
Mr. Amir Khan ]...Respondent
Appearance:
Ld. Adv. Pratyush Ranjan i/b. Singh and Singh for Applicant/plaintiff.
Ld. Adv. Aneesha Cheema with Adv. Tapan Radkar i/b. DSK Legal for
defendants No.3 (a) to 3(d)/Respondent.
CORAM : HHJ SHRI SANGRAM SHRIHARI SHINDE
C. R. NO. : 81
DATE : 10/06/2024
O R D E R
01] This chamber summons is taken out by the plaintiff to
bring on record Mr. Amir Tahir Khan i.e. respondent as legal heir of the
deceased defendant No.3 as a party defendant to the suit
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02] The plaintiff has taken out the chamber Summons on
16/11/2017. The counsel for the respondent has filed reply to the
chamber summons and objected the chamber summons, plaintiff has
filed rejoinder to the said reply.
03] The plaintiff has filed written argument and it is submitted
that plaintiff has filed present suit against the defendant for recovery of
an amount. The plaintiff has filed this chamber summons under Order
20, Rule 4 read with Order 1, Rule 10 of Civil Procedure Code (C.P.C).
The defendant No. 2 has produced a film 'Ham Hai Rahi Pyar Ke' and
entered an agreement with defendant No. 1. The said agreement was
duly signed and executed by the defendant No. 3 in his capacity as a
partner of the defendant No. 1 and as a Director of defendant No. 2.
The plaintiff had entered an agreement with defendant No. 1 on
30/10/1992 and advanced an amount of Rs. 45,00,000/ for production
and completion of said film. Further, plaintiff and defendant No. 1
entered into an agreement on 18/12/1995, wherein defendant had
agreed to transfer all rights pertaining to said film to the plaintiff. As
defendant failed to pay the amount, plaintiff has filed the present suit.
During the pendency of the suit in the year 2010, defendant No.3
expired and after the knowledge of the same, plaintiff has brought on
record legal heirs i.e. defendant No. 3(a) to 3(e) of defendant No.3 vide
order dated 06/01/2011. The plaintiff was not aware that respondent is
also one of the legal heir of deceased defendant No. 3. Plaintiff came to
know about the same in the month of November, 2017 therefore, he has
filed the present chamber summons to bring respondent No.3 on record.
It was the duty of the counsel for the defendant to inform about the
legal heirs of the deceased defendant No. 3 as per Order 22, Rule 10(a)
of C.P.C. however, defendant has not informed about the same. As per
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the Section 5 of the Limitation Act, legal heirs are to be brought on
record within 90 days from the date of death of defendant. As plaintiff
was not aware about the respondent being legal heir of the deceased
defendant No.3 therefore, there is delay to bring him on record. It is
settled law that delay may be condoned liberally in case of bringing
legal heirs on record. Further, suit cannot be abated against the
defendant as one of the legal heir was not brought on record. Further,
all prayers i.e. setting aside, abatement, delay condonation and bringing
legal heirs on record can be made in one application. Ld. Counsel for
the plaintiff has relied on ratio laid down in Katari Suryanarayana and
Ors. Vs. Koppisetti Subba Rao And Ors.,(2009) 11 Supreme Court
Cases 183, Ramdas And Anr. Vs. Dy. Director of Consolidation and
Ors., 1971 (1) Supreme Court Cases 460, Perumon Bhagvathy
Devaswom, Perinadu Village vs. Bharaghav Amma (Dead) by Lrs.
And Others, (2008) SCC 321 and C. Mathuram & Ors. Vs. Technical
Staff Housing Society Represented by its Secretary, 20153LW273.
Hence, it is prayed that chamber summons may be allowed and
respondent may be added as a party defendant to the suit.
04] On the other hand, it is argued on behalf of the respondent
that defendant No.3 is died in the year 2010. Therefore, the plaintiff
ought to have made respondent as a party defendant being legal heir of
deceased defendant No.3 within limitation i.e. 90 days from the death
of defendant No.3 as per Article 120 of Limitation Act. The plaintiff has
failed to bring this chamber summons within limitation. There is delay
of more than 7 years, as this chamber summons is filed in the year
2017. Further, the plaintiff has not given any satisfactory reason to
condone the delay to bring respondent on record as legal heir. The
plaintiff was very much aware about the respondent being legal heir of
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deceased defendant No.3 therefore, the only reason given by the
plaintiff that respondent was not impleaded as a party due to lack of
knowledge and in inadvertence cannot be accepted. Respondent is well
known Actor in the Hindi Film Industry and plaintiff had entered into
an an agreement with defendant No. 3 in respect of the alleged movie
wherein respondent was featured and the Producer of the said film was
defendant No. 3. Plaintiff has not contended how he came to know
about respondent as a legal heir of deceased defendant No. 3. In order
to condone the delay, plaintiff has to show sufficient cause. In the
present case, plaintiff has not shown the sufficient cause. Further, as
plaintiff has not taken steps within the limitation to bring all legal heirs
of deceased defendant No. 3 therefore, suit has been abated against the
deceased defendant. Ld counsel for the respondent has relied on ratio
laid down in Mahant Niranjan Dass Vs. Shiromani Gurudwara
Prabandhak Committee, Amritsar, 1993 Supp(1) Supreme Court
Cases 586, Balwant Singh (Dead) Vs. Jagdish Singh & Ors., (2010) 8
Supreme Court Cases 685, Raghunath Rai Bareja & Anr. Vs. Punjab
National Bank & Ors., (2007) 2 Supreme Court Cases 230 and
Kanaklata Das & Ors. Vs. Naba Kumar Das & Ors., (2018) 2
Supreme Court Cases 352. The plaintiff has not brought sufficient
material to condone the delay. Hence, chamber summons may be
dismissed.
05] Perused chamber summons, reply, rejoinder and record.
Heard both the parties. I have gone through the case laws cited on
behalf of the parties. On perusing record, it appears that plaintiff has
filed this chamber summons to bring respondent on record as a legal
heir of deceased defendant No. 3. It is not disputed by the respondent
that he is not a legal heir of the deceased defendant No. 3. It is the
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contention of the respondent that all legal heirs of deceased defendant
No. 3 are not brought on record within limitation therefore, suit against
the defendant No. 3 is abated. It is pertinent to note that in view of
ratio laid down in Ramdas And Anr. Vs. Dy. Director of
Consolidation and Ors.'s case cited by the plaintiff, if other legal heirs
of deceased defendant are on record suit cannot be abated for reason
that one of the legal heir is not brought on record. Therefore, there is
no substance in the contention of the respondent suit is abated against
defendant.
06] It is the contention of the respondent that plaintiff has not
filed separate application to condone delay and set aside abatement. It
is settled law that application to bring legal heirs on record cannot be
rejected only on the ground that there is no separate application for
setting aside abatement and condonation of delay in setting aside
abatement in view of ratio laid down in C. Mathuram & Ors. Vs.
Technical Staff Housing Society Represented by its Secretary's case
cited on behalf of the plaintiff.
07] It is the contention of the respondent that plaintiff ought to have
bring legal heirs of deceased defendant No. 3 on record within 90 days
from the death of the said defendant in view of Art. 120 of Limitation
Act in view of ratio laid down in Mahant Niranjan Dass Vs. Shiromani
Gurudwara Prabandhak Committee, Amritsar's case. On the contrary,
it is the contention of the plaintiff that it is the duty of the counsel for
the defendant to inform the Court about the death of the deceased
defendant as per Order 22, Rule 10A of C.P.C. It is not disputed that
defendant No.3 died on 02/02/2010. Further, plaintiff has brought
defendant No.3(a) to 3(e) on record as a legal heir of deceased
defendant No .3 in view of order passed in Chamber Summons No.665
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of 2010 on 06/01/2011. This shows that plaintiff was having
knowledge that defendant No. 3 is expired. Therefore, it was the duty
of the plaintiff to bring all legal heirs of deceased defendant No.3 on
record.
08] As per the contention of the plaintiff due to lack of
knowledge and inadvertence respondent was not brought on record. It
is also the contention of the plaintiff that counsel fir the defendant No.
3 failed to provide names of all legal heirs. It is not the case of the
plaintiff that he had gave letter to the defendant and asked about
information legal heirs of deceased defendant No.3. It is the contention
of the plaintiff he got the knowledge in the month of November, 2017
that respondent is one of the legal heir of deceased defendant No. 3.
However, plaintiff has not disclosed the source of knowledge how he
came to know in the month of November, 2017 that respondent is one
of the legal heir of deceased defendant No. 3. Thus, it appears that the
only reason given for the delay to bring respondent on record as legal
heir of defendant No. 3 is that plaintiff was not aware about the same.
As rightly pointed out by learned counsel for the respondent that
respondent was casted in film 'Hum Hai Rahi Pyar Ke' to which plaintiff
has financed and it was produced by defendants. Therefore, it is
unbelievable that plaintiff was not having knowledge that respondent
was legal heir of deceased defendant No. 3. Even, in rejoinder to reply
of Chamber Summons, plaintiff has not contended when and how he
got the knowledge about the respondent being legal heir of the
deceased defendant No. 3 in the month of November 2017. However, it
is not specifically contended how he came to know about respondent in
the month of November 2017.
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09] It is the contention of the plaintiff that a liberal approach
has to be taken to condone the delay to bring legal heirs on record in
view of ratio laid down in Katari Suryanarayana and Ors. Vs.
Koppisetti Subba Rao and Ors. and Perumon Bhagvathy Devaswom,
Perinadu Village vs. Bharaghav Amma (Dead) by Lrs. And Others's
case laws cited by him. It is pertinent to note that when plaintiff gets
knowledge about death of defendant then it is his duty to bring his legal
heirs on record within 90 days from the date of death or date of
knowledge of death. Admittedly, plaintiff has got the knowledge about
death of defendant No. 3 in the year 2010. Therefore, it was the duty of
plaintiff to bring all legal heirs of deceased defendant no. 3 on record.
Further, if there is delay and it is explained properly, it can be condoned
liberally. However, as discussed above, in the present matter except lack
of knowledge and inadvertence no reasons has given by the plaintiff.
The plaintiff has not given cogent and sufficient reasons to condone
delay to bring respondent on record. It is settled law that even if
'sufficient cause' has to receive liberal construction, it must squarely fall
within concept of reasonable time and proper conduct of party
concerned. Liberal construction cannot be equated with doing injustice
to other party. In other words, it implies presence of legal and adqueate
reasons. Therefore, I am of the view that plaintiff has failed to show the
sufficient cause to condone the delay to bring respondent as a legal heir
on record. Therefore, ratio laid down in case laws cited supra by the
plaintiff are not applicable to the facts of present matter. On the
contrary, ratio laid down in Balwant Singh (Dead) Vs. Jagdish Singh
& Ors.'s, Raghunath Rai Bareja & Anr. Vs. Punjab National Bank &
Ors. and Kanaklata Das & Ors. Vs. Naba Kumar Das & Ors.'s case
laws cited supra on behalf of the respondent are applicable to the facts
of present matter. Therefore, plaintiff is not entitled to relief claimed.
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Hence, I proceed to pass following order.
ORDER
1. Chamber Summons No. 519 of 2018 is hereby dismissed.
2. Chamber Summons No. 519 of 2018 is disposed off accordingly.
(Sangram. S. Shinde)
Adhoc Judge,
City Civil Court, Mazgaon, Mumbai.
Court Room No.81
Date 10/06/2024
Dictated on : 10/06/2024
Corrected & signed on :13/06/2024
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE NAME OF STENOGRAPHER
14/06/2024 Mrs. V. V. Malgaonkar
Name of the Judge
(with Court Room No.)
Shri. Sangram S. Shinde
C.R. No.81
Date of Pronouncement of JUDGMENT/
ORDER
10/06/2024
JUDGMENT/ORDER signed by P. O. on 13/06/2024
JUDGMENT/ORDER uploaded on 14/06/2024
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