Final Order 1

Order Details: Chamber summons
Pdf Text: MHCC010042192019
CNR NO. MHCC010042192019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO.834 OF 2019
IN
S.C. SUIT NO.492 OF 1991
(HIGH COURT SUIT NO.3318 OF 1991)
1. NEETA NEELKANTH SHETYE & ORS. ]… Plaintiffs
V/s.
1. M/S SHALOM DEVELOPMENT ]
CORPORATION AND ANOTHER ]...Defendants.
Appearance:
Learned Advocate Mr. P. S. Mishra for plaintiff.
Learned Advocate Ms. Pratiksha Koshe i/b Ld.Adv. Parag Shah for
defendant 3(c) to 3(e).
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.
BORLEPWAR
(C.R.No.13)
DATED : 11th March, 2021
ORAL ORDER
1. Mr. Paresh Nagesh Shetye, the C.A. Of the plaintiff No.1
took out this Chamber Summons for condonation of delay in filing the
Chamber Summons, to bring LR's deceased plaintiff No.2 and deletion
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of defendant No.3(a) and 3(b) and to bring on record proposed
defendant Nos.4 and 5.
2. Perused Chamber Summons, affidavit in support of
Chamber Summons and reply of defendant No.3(c) to 3(e).
3. Heard Learned Advocate Mr. P. S. Mishra for plaintiff and
Learned Advocate Mr. Parag Shah for defendant No.3(c) to 3(e)
4. Following points arise for my determination, I record my
findings for the reasons mentioned below:
Sr. No. POINTS FINDINGS
1 Whether there is delay in taking out
Chamber Summons ?
In the affirmative.
2. Whether plaintiff No.1 can be permitted
to bring the LR's of deceased plaintiff
No.2 on record ?
In the affirmative.
3 Whether plaintiff No.1 can be permitted
to delete the defendant No.3(a) and
3(b) since deceased from cause title of
the suit ?
In the affirmative.
4 Whether plaintiff No.1 can be permitted
to add proposed defendant Nos.4 and 5
as defendant No.4 and 5 to the suit ?
In the affirmative.
5 What Order ? Chamber Summons
is allowed as per
final order.
REASONS
As to point Nos.1 to 5.
5. In brief, it is contention of the plaintiff No.1 that his father
Nagesh Vishwanath Shetye i.e. Plaintiff No.2 died on 31.12.2018
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leaving behind wife Vaishali, his daughter Pragati, deponant Paresh
Nagesh Shetye as his son and another son Prashant Nagesh Shetye.
6. Advocate for defendant No.3(c) and 3(e) submitted before
the Court on 31.12.2018 that defendant No.3(a) and 3(b) are dead. He
also submitted before the Court that heirs of defendant No.3(a) and
3(b) are already on record. Plaintiff has not made Pratibha Prakash
Rasal and Pallavi Prakash Bakalkar as party defendant to the suit. He
informed to the Court by filing pursis dated 09.06.2009. The names of
Pratibha Prakash Rasal and Pallavi Prakash Bakalkar as heirs of
deceased defendant No.3(a) and 3(b).
7. Advocate for defendant No.3(c) and 3(e) did not serve
copy of the pursis dated 09.06.2009 to the plaintiff Advocate. The said
advocate also did not inform the name of said two heirs to the plaintiff
advocate and did not provide copy of the Death Certificate. Therefore,
in view of the Roznama / Noting dated 21.12.2018 plaintiff No.1 has
filed this Chamber Summons. Therefore, delay be condoned and
Chamber Summons be allowed. Plaintiff No.1 be permitted to amend
the plaint as per Schedule filed with the Chamber Summons.
8. In brief, it is contention of defendant No.3(c) and 3(e) that
defendant No.3(d) Manoj Raut informed to the Court on 20.01.2018
that defendant No.3(a) and 3(b) i.e. Mr. Tukaram Raut and Mrs.
Anandibai Raout expired. Court directed to the plaintiff to take steps as
per Roznama/ Noting dated 20.1.2018.
9. Death Certificate of defendant No.3(a) and 3(b) are filed
on record. It was pointed out to the Court on 21.12.2018 that two heirs
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namely Pratibha Prakash Rasal and Pallavi Prakash Bakalkar are not
brought on record by the plaintiff inspite of fact that preceipee dated
09.01.2009 is filed on record disclosing the names of said two heirs.
10. Plaintiff No.2 expired on 31.12.2018. The defendant
No.3(a) and 3(b) died on 29.01.2010 and 30.12.2014. This Chamber
Summons is lodged on 15.04.2019. This Chamber Summons by way of
draft of Chamber Summons was filed before the Court on 04.04.2019.
11. Perused Affidavit in reply which is filed by Manoj Raut who
is defendant No.3(d) and consituted Attorney of defendant Nos.3(c) to
3(e). After going through the said reply it appears that the defendant
No.3(c) and 3(e) have not mentioned the date of death of defendant
No.3(a) and 3(b) Mr. Tukaram and Mrs. Anandibai in the Affidavit in
reply filed on 07.02.2020. According to the said defendants death
Certificate of defendant No.3(a) and 3(b) are filed on record. It is also
contention of the said defendants that defendant No.3(b) Manoj on
20.01.2018 informed to the Court regarding death of defendant No.3(a)
and 3(b) Mr. Tukaram Raut and Mrs. Anandibai Raut.
12. Perused Written statement of defendant No.3(c) to 3(e)
Exh.5. The said defendants filed xerox copy of Death Certificate of
Tukaram Dondu Raut and Mrs. Anandibai Tukaram Raut. I have gone
through the said Death Certificate filed with the written statement
Exh.5. Defendant No.3(a) Tukaram Raut died on 29.01.2010.
Defendant No.3(b) Anandibai Tukaram died on 30.12.2014.
13. According to the plaintiff No.1, the advocate of defendant
Nos.3(c) and 3(e) did not inform the date of death of defendant
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Nos.3(a) and 3(b) and did not provide names of the said two heirs and
death Certificate of Mr. Tukaram Raut and Anandibai Raut.
14. Perused Order 22 Rule 10(a) of the Code of Civil
Procedure. As per the said provision whenever a pleader appearing for
a party to the suit comes to know of the death of that party, he shall
inform to the Court about it, and the Court shall thereupon give notice
of such death to the other party, and, for this purpose, the contract
between the pleader and the deceased party shall be deemed to subsist.
15. According to the defendant No.3(c) to 3(e) death of
defendant No.3(a) Mr. Tukaram Raut and defendant No.3(b) Mrs.
Anandibai Raut has informed to the Court on 20.01.2018 and Court
directed to the plaintiff to take necessary steps.
16. Perused Roznama dated 20.01.2018. On that date Court
directed plaintiff to take necessary steps and matter adjourned from
20.01.2018 to 21.02.2018. It means it can be inferred that on
20.01.2018 the fact of death of defendant No.3(a) and 3(b) is informed
to the Court by defendant No.3(b) Manoj on 20.01.2018.
17. Perused Article 120 of the Limitation Act. As per the said
provision legal representative of the deceased plaintiff or appellant or of
a deceased defendant or respondent, can be made a party to the
proceeding within ninety days from the date of death of the plaintiff,
appellant, defendant or respondent, as the case may be.
18. Perused Article 121 of the Limitation Act. As per the said
provision Order of abatement can be set aside. Period of limitation is
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sixty days to file application to set aside the abatement from the date of
abatement of the suit or proceeding.
19. Perused Order 22 Rule 3 Sub Rule 1 of the Code of Civil
Procedure. As per the said rule where one of two or more plaintiffs dies
and the right to sue does not survive to the surviving plaintiff or
plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the
right to sue survives, the Court, on an application made in that behalf,
shall cause the legal representative of the deceased plaintiff to be made
a party and shall proceed with the suit.
20. As per Order 22 Rule 3 Sub Rule 2 of the Code of Civil
Procedure, where within the time limited by law no application is made
under sub-rule (1) of Order 22 Rule (3) of Code of Civil Procedure the
suit shall abate so far as the deceased plaintiff is concerned, and, on the
application of the defendant, the Court may award to him the costs
which he may have incurred in defending the suit, to be recovered from
the estate of the deceased plaintiff.
21. Perused Order 22 Rule 4(1) of the Code of Civil Procedure.
Perused Order 22 Rule 4 of the CPC. As per Order 22, Rule 4, Sub Rule
1 of the CPC
where one or two or more defendants dies and the right to
sue does not survive against the surviving defendant or defendants
alone, or a sole defendant or sole surviving defendant dies and the right
to sue survives, the Court, on an application made in that behalf, shall
cause the legal representative of the deceased defendant to be made a
party and shall proceed with the suit.
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22. As per Order 22, Rule 4, Sub Rule 2 of the CPC any person
so made a party may make any defence appropriate to his character as
legal representative of the deceased defendant.
23. As per Order 22, Rule 4, Sub Rule 3 of the CPC where
within the time limited by law no application is made under sub-rule
(1), the suit shall abate as against the deceased defendant.
24. Perused Section 5 of the Limitation Act, 1963. As per the
said provision any appeal or any application, other than an application
under any of the provisions of Order XXI of the Code of Civil Procedure,
1908, may be admitted after the prescribed period, if the applicant
satisfies the Court that he had sufficient cause for not preferring the
appeal or making any application within such period.
25. Plaintiff No.2 Nagesh died on 31.12.2018. Defendant
No.3(a) Tukaram Dhondirao Raut died on 29.01.2010. Defendant
No.3(b) Mrs. Anandibai Raut died on 30.12.2014. This Chamber
Summons is registered on 15.04.2019. Therefore, as per said provisions
of law there is delay in taking out the Chamber Summons. It appears
that delay is not intentional therefore, delay can be condoned.
26. As per Order 1 Rule 10 Sub Rule 2 of the Code of Civil
Procedure the Court may at any stage of the proceedings, either upon or
without the application of either party, and on such terms as may
appear to the Court to be just, order that the name of any party
improperly joined, whether as plaintiff or defendant, be struck out, and
that the name of any person who ought to have been joined, whether as
plaintiff or defendant, or whose preence before the Court may be
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necessary in order to enable the Court effectually and completely to
adjudicate upon and settle all the question involved in the suit, be
added.
27. According to the defendant No.3(c) to 3(e) the proposed
defendants Pratibha Prakash Rasal and Pallavi Prakash Bakalkar are
also heirs who are not brought on record by plaintiffs.
28. Perused Pursis filed on behalf of the defendant No.3(c) to
3(e) on 21.12.2018 Exh.4. It is informed to the Court by the said Pursis
Exh.4 that there are no other legal heirs of defendant No.3(a) and 3(b)
needs to be taken on record as their legal heirs of defendant No.3(a)
and 3(b) are already on record.
29. Perused para No.4 of reply filed to the Chamber Summons.
It is mentioned therein that it was brought to the attention of the Court
that despite the preciepee dated 09.01.2019 the names of Pratibha
Prakash Rasal and Pallavi Prakash Bakalkar are still not brought on
record by the plaintiffs.
30. I have gone through the record, it appears that on
09.01.2009 Ms. Hetal Patel Advocate filed preciepee stating therein that
she is concerned for Mr. Sadanand Raut, i.e. Defendant No.3. The
defendant No.3 died on 13.03.2008 at Bombay leaving behind 7 legal
heirs.
1. Mr. Tukaram Dondirao Raut,
2. Mrs. Anandibai T. Raut,
3. Mr. Nitin T. Raut,
4. Mr. Manoj T. Raut
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All residing at Utsahi Building,
A 303, Extension Rebellow Road,
Near Mount Mary Steps,
Bandra (West), Bombay – 400 050
5. Mrs. Shubhangi Chandrahas
Residing at Sai Sada Zagade Chawl,
Room No.5, Near Sai Mandir,
Tata Power House, Borivali (East) Bombay,
6. Mrs. Pratibha Prakash Rasal
residing at Mane Chawl,
Kajupada, Borivali (East),
7. Mrs. Prakash Bakalkar
residing at Navratan Housing Society,
4th floor, Old Dombivali, Dist. Thane,
31. It is also mentioned in the said precipee that legal heirs
No.1 to 4 are resident of Bandra (West), Bombay. Legal heir No.5 Mrs.
Shubhangi is resident of Borivali (East), Bombay. Legal heir No.6 Mrs.
Pratibha Prakash Rasal is also residents of Borivali (East), Bombay and
legal heir No.7 Mrs. Prakash Bakalkar is resident of old Dombiwali,
Dist. Thane.
32. Considering the nature of the suit and the facts and
circumstances, it is necessary to allow the plaintiff No.1 to bring the
LR's on record. Therefore, I record my findings to point Nos.1 to 4 in
the affirmative and point No.5 as per final order. Hence, following
order:
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ORDER
Chamber Summons No. 834 of 2019 in SC Suit No.492 of 1991 is
allowed as under-
1. Delay in taking out of the Chamber Summons to bring the LR's on
record is hereby condoned.
2. Plaintiff No.1 is allowed to bring the LR's on record as per schedule
filed with this Chamber Summons.
3. Plaintiff No.1 is allowed to delete the name of defendant no.3(a) and
3(b) since deceased from the cause title of the plaint.
4. Plaintiff No.1 is allowed to bring the LR's of deceased Plaintiff No.2
on record as Defendant No.2(a) to 2(d).
5. Plaintiff No.1 is allowed to add proposed defendant Pratibha and
Pallavi as defendant no.4 and 5 respectively to the suit.
6. Plaintiff No.1 is also allowed to make consequential amendment if
any to the plaint.
7. Plaintiff No.1 is directed to carry out amendment as above till next
date and file on record amended copy of the plaint for court record and
for defendant.
8. After carrying out amendment as directed above writ of summons of
amended plaint be served to the added defendant no.4 Pratibha Rasal
and defendant no.5 Pallavi Bakulkar at the cost of the plaintiff.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.13)
Dt.: 11/03/2021 City Civil Court, Gr. MUMBAI
Dictated on : 11.03.2021
Transcribed on : 15.03.2021
Checked on : 16.03.2021
Signed on : 16.03.2021 ( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.13)
City Civil Court, Gr. MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
16.03.2021 at 05.15 p.m.
UPLOAD DATE AND TIME
(VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S. G.
BORLEPWAR
(COURT ROOM NO.13)
Date of pronouncement of judgment/order 11.03.2021
Judgment/order signed by P.O. on 16.03.2021
Judgment/order uploaded on 16.03.2021
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