Final Order 1

Order Details: Chamber summons
Pdf Text: MHCC010044992019
CNR NO. MHCC010044992019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO.888 OF 2019
IN
SUIT NO.7691 OF 1996
(HIGH COURT SUIT NO.1945 OF 1996)
Tirathraj Ramchandra Yadav ] ...Plaintiff
Versus
1. Smt. Vithalbai Pandharinath Patil & Ors.] ...Defendants.
Appearances :-
Adv. Ms. Riddhima for Plaintiff.
Adv. Adayanta for defendant No.7 and 8.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.
BORLEPWAR
(C.R.No.20)
DATED : 8th December, 2020
ORAL ORDER
1. Plaintiff took out this Chamber Summons to strike out the
names of deceased defendant Nos.1, 2, 4, 5 and 9, to set aside the
abatement of the suit against the said defendants and to permit to bring
on record the heirs i.e. the proposed defendant.
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2. Perused Chamber Summons, affidavit in support of
Chamber Summons, reply of defendant Nos.7 and 8 to the Chamber
Summons. Heard Learned Advocate Ms. Riddhima Maangaonkar
appearing for the plaintiff and Advocate Adayanta for defendant Nos.7
and 8.
3. Following points arise for my determination. I record my
findings thereof for the reasons mentioned below:
Sr.
No.
POINTS FINDINGS
1. Whether suit be abated against the
defendant Nos.1, 2, 4, 5 and 9 because of
their death ?
In the affirmative.
2. Whether plaintiff can be permitted to strike
out the names of the defendant Nos.1, 2, 4,
5 and 9?
In the affirmative.
3. Whether plaintiff can be permitted to bring
respondent /proposed defendants on
record ?
In the affirmative.
4 What Order ? Chamber Summons is
allowed as per final
order.
REASONS
As to point Nos.1 to 4:
4. In brief, it is contention of plaintiff that the suit is filed in
the year 1996 in the Hon'ble High Court. Due to enhancement of
pecuniary jurisdiction of the City Civil Court, the suit is transferred from
Hon'ble High Court to this Court on 29.09.2012. The suit was
dismissed for default on 10.04.2015. Plaintiff took out Notice of
Motion No.1575 of 2016 for restoration of the suit. The suit is restored
as per the order dated 06.03.2019 passed in Notice of Motion No.1575
of 2016. Plaintiff was informed that some of the defendants are
expired. Consequently plaintiff amended the cause title of the said
Notice of Motion.
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5. Defendant No.1 Smt. VithaLbai Pandharinath Patil died on
18.05.2014. Defendant No.2 Mr. Vijay Pandharinath Patil died on
26.12.2010 leaving behind his legal heirs namely his daughter Smt.
Chandralekha Jagdish Vaity, his son Mr. Shailesh Vijay Patil and Mr.
Santosh Vijay Patil as his surviving legal heirs.
6. Defendant No.4 Harish Pandharinath Patil died on
09.09.2017 leaving behind his egal heirs namely his wife Smt. Rohini
Harish Patil, his son Mr. Vaibhav Harish Patil and his three daughters
namely (1) Rupali Harish Patil (2) Sonal Harish Patil and (3) Monali
Harish Patil.
7. Defendant No.5 Kusum Baban Patil died on 05.06.2018
leaving behind her only son namely Mr. Mahesh Baban Patil who is
already on record as defendant Nos.6.
8. Defendant No.9 Mr. Jitendra Chandulal Shah died on
24.06.2005 leaving behind his wife Smt. Kokila Jitendra Shah, his son
Mr. Ravi Jitendra Shah and his two daughters Smt. Hemangini Nimesh
Doshi and Smt. Sweta Sunil Shah.
9. The Learned Advocate appearing for the respective
defendants never informed either the plaintiffs Advocate or the
plaintiffs about the death of the said defendants. Plaintiff was neither
informed by any person regarding death of the said defendants.
Therefore, plaintiff came to know about the death of the said
defendants only when attempt was made to serve Notice of Motion to
the said defendants. Therefore, there is no delay to bring the said heirs
on record. Abatement of suit against the said defendants be set aside
and plaintiff be permitted to bring heirs on record as per schedule
attached with the Chamber Summons.
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10. In brief, it is contention of the defendant Nos.7 and 8 that
there is inordinate delay in taking out the Chamber Summons. The
Chamber Summons is barred by Law of Limitation. There are no
sufficient grounds for condonation of delay. Suit against the said
defendants is already abated. All the adverse contentions raised in the
Chamber Summons are denied. Hence Chamber Summons be
dismissed.
11. Perused Order 22 Rule 4(1) of the Code of Civil Procedure.
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.
12.
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.
13. 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.
14. 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.
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15. Perused Article 121 of the Limitation Act. As per the said
provision Order of abatement can be set aside. Period of limitation is
sixty days to file application to set aside the abatement from the date of
abatement of the suit or proceeding.
16. Defendant No.1 Vithalbai Pandharinath Patil died on
18.05.2014. Defendant No.2 Mr. Vijay Pandharinath Patil died on
26.12.2010. Defendant No.4 Harish Pandharinath Patil died on
09.09.2017. Defendant No.5 Kusum Baban Patil died on 05.06.2018.
Defendant No.9 Mr. Jitendra Chandulal Shah died on 24.06.2005. In
view of the aforesaid the suit is already abated against the said
deceased defendants because of their death and non bringing their
L.R.'s on record except against the defendant No.5 Kusum Patil as her
L.R. is already on record as defendant No.6.
17. According to the plaintiff nobody informed him about the
death of said defendants. The plaintiff came to know about the death at
the time of attempt to serve Notice of Motion No. 1575 of 2016 to
them. According to the plaintiff, said Notice of Motion is decided on
06.03.2019.
18. Perused Death Certificate of deceased defendants Smt.
Vithabai, deceased defendant Vijay Patil, deceased defendant Harish
Patil, deceased defendant Kusum Patil. It appears that there is delay to
bring the L.R.'s on record. Considering the grounds of delay mentioned
in the Notice of Motion, I am of the opinion that the delay is not
intentional and inordinate. Therefore, abatement of suit against the
said defendants can be set aside and plaintiff can be permitted to bring
heirs on record. Plaintiff can be permitted to strike out the names of
defendant No.1, 2, 4, 5 and 9 and to make amendment in the plaint as
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per schedule attached with this Chamber Summons. Hence, I record my
findings on point No.1 to 3 in affirmative and point No.4 Chamber
Summons is allowed as per final order. Hence I proceed to pass the
following order.
ORDER
Chamber Summons No. 888 of 2019 in SU No. 7691 of 1996 (High
Court Suit No. 1945 of 1996) is allowed as under-
1. Abatement of suit against the defendant nos. 1,2, 4, 5 and 9 is
hereby set aside.
2. Plaintiff is permitted to strike out the names of defendant nos. 1, 2,
4, 5 and 9 since deceased from the cause title of the plaint.
3. Plaintiff is permitted to add respondents/ proposed defendants as
per schedule attached with this Chamber Summon in the cause title of
the suit.
4. Plaintiff is permitted to make consequential amendment if any, in
the plaint.
5. It is not proper to give short date to comply this order in view of
Corona Virus Covid-19 Pandemic.
6. Plaintiff is directed to carry out amendment as directed above on or
before 26-02-2021.
7. Plaintiff is directed to file on record amended copy of the plaint
after carrying out amendment as directed above and also supply
amended copy of the plaint to the defendants who are on record.
8. Plaintiff is directed to serve amended writ of summons to the added
defendants on required process fee after carrying out amendment as
directed above.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
Dt.: 08/12/2020 City Civil Court, Gr. MUMBAI
Dictated on : 08/12/2020.
Transcribed on : 19/12/2020.
Checked on : 19/12/2020.
Signed on : 19/12/2020.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
City Civil Court, Gr. MUMBAI
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CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
19.12.2020 at 01.20 p.m.
UPLOAD DATE AND TIME
(VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S. G.
BORLEPWAR
(COURT ROOM NO.20)
Date of pronouncement of judgment/order 08.12.2020
Judgment/order signed by P.O. on 19.12.2020
Judgment/order uploaded on 19.12.2020
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