Final Order 1

Order Details: Chamber summons
Pdf Text: 1 CS 809-2019 in LC SU 1089-2017
MHCC010040712019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
GREATER BOMBAY
CHAMBER SUMMONS NO.809 OF 2019
in
LC SUIT NO. 1089 OF 2017
Kamlakar Suryakant Patkar ....Applicant
In the matter of
Vitthal Govind Raut .... Plaintiff
And
Anant Suresh Khedekar & Others ....Defendants
CORAM: H.H. JUDGE & ADDL.
SESSIONS JUDGE,
SHRI. K. P. KSHIRSAGAR,
(C.R. No.05).
DATE : 7th DECEMBER, 2021.
Appearance:
-
Shri. Thipse; Ld Advocate for Applicant.
Shri. Ajay Yadav; Ld Advocate for defendant No.1.
ORAL ORDER
1) Applicant has taken out this chamber summons for
condonation of delay and for substituting his name in place of deceased
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plaintiff as Executor of the deceased plaintiff and to allow him to amend
the plaint.
2) Perused the chamber summons, affidavit in support of same,
documents annexed to affidavit in support of chamber summons, reply of
defendant No.1. Heard Ld Advocate for applicant and Ld Advocate for
defendant No.1.
3) Ld Advocate for applicant argued that applicant is the
Executor of the Will of deceased plaintiff. Therefore, applicant is legal
representative of deceased plaintiff. Right to sue survive. Question of
genuiness of Will is to be considered in probate proceeding and not in
the present proceeding. The applicant has shown sufficient cause for the
delay in taking out the chamber summons. The delay is not deliberate
and intentional. Therefore, Ld Advocate for applicant submitted that
notice of motion be made absolute. Ld Advocate for applicant kept
reliance on the following citations:-
a) Suresh Kumar Bansal vs Krishna Bansal & Anr, (2010) 2 SCC 162;
b) Kedar Lal vs Babulal Vyas & Ors, (2003) 9 SCC 624.
Court has gone through the observations therein.
4) On the other hand Ld Advocate for defendant No.1 argued
that the cause of action of the suit was personal and it does not survive
after death of the plaintiff. The applicant is not the legal representative
of the plaintiff. Till date probate is not issued in favour of the applicant.
Suit is already abated as present chamber summons was not taken out
within the prescribed period. There is no sufficient cause for condonation
of delay. Hence, Ld Advocate for defendant No.1 submitted that present
chamber summons be dismissed.
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5) From the perusal of the copy of death certificate filed
alongwith affidavit in support of chamber summons it appears that the
plaintiff expired on 9/11/2018. From the copy of the Will of the
deceased plaintiff annexed with the affidavit in support of chamber
summons it appears that applicant is the Executor appointed by the Will
of the deceased plaintiff. The legatee of the Will or Executor in law
represents the estate of the deceased. In the case of Sureshkumar Bansal
vs Krishna Bansal & Anr cited supra it is observed that, “when a legatee
under a Will intends to represent the interest of the estate of the
deceased testator, he will be a legal representative within the meaning of
Section 2 (11) of the Code of Civil Procedure”. Therefore, applicant
appears to be legal representative of the deceased plaintiff. By present
chamber summons applicant wants to substitute his name as the legal
representative of deceased plaintiff in place of deceased plaintiff. The
cause of action to sue and right to sue survive and there appear no
substance in the contention of the defendant No.1 that the cause of
action was personal and it does not survive after death of the plaintiff.
From the contents of para No.8 of the affidavit in support of chamber
summons there appear sufficient cause for non taking out present
chamber summons within prescribed period. The delay is also not
inordinate and it does not appear to be intentional. Therefore, there
appear sufficient cause for condonation of delay for setting aside the
abatement and taking out the present chamber summons. The proposed
amendment is also formal and necessary for deciding the real
controversy between the parties. No prejudice will be caused to the
defendant No.1 if the chamber summons is allowed.
6) Considering the matter on record and above discussion in
the interest of justice chamber summons deserves to be allowed. Hence,
the following order;
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ORDER
1) Chamber Summons No. 809/2019 is made
absolute.
2) Applicant shall carryout the proposed amendment
within 14 days from the date of this order.
3) Chamber Summons No.809/2019 is disposed of
accordingly.
Date: 7/12/2021 (K.P. Kshirsagar)
Judge
C.R.No.5
City Civil Court, Gr. Bombay
Dictated & directly typed on : 7/12/2021
Checked on : 7/12/2021
Signed by HHJ on : 7/12/2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
8/12/2021 Mrs. S.A. Shekade.
Name of the Judge (With Court room
no.)
SHRI K.P. Kshirsagar (Court Room
No.05)
Date of Pronouncement of
JUDGMENT/ORDER
7/12/2021
JUDGMENT/ORDER signed by P.O.
on
7/12/2021
JUDGMENT/ORDER uploaded on 8/12/2021
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