Final Order 1

Order Details: Other
Pdf Text: 14.10.2019
NM 3327/18
Ch/s 872/19
in disposed
of
SU 7765/85
CORAM: H. H. J. SHRI.M.T.ASIM (CR. NO. 02)
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
Judge
-- 1 of 1 --