Date: 13-06-2019
Business: Adv. Saroj Ghatge for plaintiff present.
Adv. Atharva Sawant for legal heir of defendant No.1 present.
Plaintiff tendered original chamber summons No.872/19 TOR
Advocate for plaintiff sought time to file affidavit of service Granted as prayed.
Adjd for service report to 19.07.2019
Next Purpose: CHAMBER SUMMONS
Next Hearing Date: 19-07-2019
Date: 19-07-2019
Business: Adv. Saroj Ghatge for Plaintiff present.
Adv. Atharva Sawant appeared for legal heirs of defendant no.1 and undertakes to file V/n.
Affidavit of service filed by Adv for Plaintiff relating to heirs of defendant no.1.
Adj for Ch/s reply to 01.08.2019.
Next Purpose: C/S REPLY
Next Hearing Date: 01-08-2019
Date: 01-08-2019
Business: Adv. Ishan Gambhir for Plaintiff present.
Exh.A Adv. Devyani Deshmukh filed V/n for respondent nos.1 to 5/ representatives of defendant no.1 t.o.r.
Reply filed by Adv for respondent nos.1 to 5 on Ch/s No.872/19 t.o.r.
Adv. Chaitanya Patel for defendant nos.2(a) to 2(d) present.
He filed reply to NM No.3327/18 t.o.r.
Representatives of defendant no.1 are directed to file reply to NM in view of Sec.146 of C.P.C.
Adj for NM reply and Ch/s hearing to 29.08.2019.
Next Purpose: C/S HEARING
Next Hearing Date: 29-08-2019
Date: 29-08-2019
Business: CA of plaintiff present.
Adv. Nishant For Plaintiff present.
Adv. Devyani Deshmukh for respondent 1 to 5 present.
Matter adjd to 24/09/2019 for Ch/s hearing.
Next Purpose: C/S HEARING
Next Hearing Date: 24-09-2019
Date: 24-09-2019
Business: Adv. Ishan Gambhir for Plaintiff present.
Adv. Atharva Sawant for defendant no 1 to 5 present.
Mr. Mohammad Yasim C.A. Of plaintiff present.
Additional affidavit filed by plaintiff in support of Ch/s t.o.r. copy is given to respondent. Matter is adjd. Ch/s hearing.
Adjd. to 14.10.2019 for Chamber summons hearing.
Next Purpose: C/S HEARING
Next Hearing Date: 14-10-2019
Date: 14-10-2019
Business: Adv. Ishan Gambhir for plaintiff present.
CA for plaintiff present.
Adv. Atharva Sawant for respondent nos.1 to 5 present.
Adv. Sarika Mehara for defendant nos.2a to 2d present.
Heard arguments of both sides in Ch/S. No.872 of 2019
KB
ORDER PASSED BELOW CHAMBER SUMMONS NO.872 OF 2019 ALONG WITH ADDITIONAL AFFIDAVIT
Perused chamber summons, affidavit in support of it, additional affidavit making prayer for condoning delay caused in taking out chamber summons and reply of respondent Nos.1 to 5. Heard respective counsel for parties.
Chamber summons is taken out by the applicant/original plaintiff to bring on record of notice of motion No.3327 of 2018 and suit legal representatives of deceased defendant No.1.
It is contended that plaintiff came to know about the death of defendant No.1 after receipt of letter dated 23.10.2018 from the advocate of defendant No.1 and also about his legal representatives. It is further contended that defendant No.1 died on 29th September, 2018. Plaintiff was under impression that as suit has already been disposed off so it is matter between Hon\''ble Court and plaintiff and prayed for condoning delay caused in taking out chamber summons.
Respondent Nos.1 to 5 opposed prayer to bring them on record of the suit but they have no objection to bring them on record of notice of motion.
So far as prayer of plaintiff/applicant that legal representatives of deceased defendant No.1 be brought on record of Suit No.7765 of 1985 is concerned same cannot be considered at this stage as suit is yet not restored on the file of this court. It is already disposed off. Therefore, I am not inclined to grant relief to bring legal representatives of deceased defendant No.1 on record of disposed off Suit No.7765 of 1985.
On perusal of copy of death certificate it is clear that defendant No.1 died on 29.09.2018. Certainly, present chamber summons is not taken out within period of 90 days from the date of death of defendant No.1 in view of Article 120 of the Limitation Act. So far as suit is concerned it is already disposed off so question of bringing legal representatives of deceased defendant No.1 in the suit does not arise at this stage. However, legal representatives of deceased defendant No.1 can be brought on record of notice of motion No.3327 of 2018. It is pertinent to note that in view of Section 146 of Code of Civil Procedure, legal representatives of deceased defendant No.1 have Right of Audience in notice of motion. Instead of throwing out chamber summons on technical ground of delay, it is just in the interest to permit applicant/plaintiff to bring legal representatives of deceased defendant No.1 on record of notice of motion No.3327 of 2018. Even otherwise said legal representatives have no objection to bring them on record of said notice of motion. Hence, pass following order.
ORDER
1. Delay caused in taking out Chamber Summons No.872 of 2019 is hereby condoned and plaintiff is permitted to bring legal representatives of deceased defendant No.1 on record of Notice of motion No.3327 of 2018 within period of two weeks from the date of this order.
2. Accordingly, chamber summons is partly allowed and disposed off.
Adjourned for compliance of notice of motion to 15.11.2019
Nature Of Disposal: ALLOWED
Disposal Date: 14-10-2019