Interim Order 1

Order Details: Chamber summons
Pdf Text: CS No. 72118 Suit No.448708
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO.721 OF 2018
IN
SUIT NO. 4487 OF 2008
Kantilal Otarmal Jain
aged 69 years of Mumbai, an adult
Indian Inhabitant having his address
at Flat No.8, 2nd floor, Saraswat
Sadan, Parel, Mumbai 400 012
….Plaintiff
(Since deceased)
Versus
1 Bomi Patel & Co.
a partnership firm carrying on
business at Flat No.301, 3rd floor, 139,
Nazir House, Cumballa Hill, Mumbai
400 036.
2 Khurshed Bomi Patel
3 Manek N. Patel
of Mumbai both adult Indian
Inhabitants, having their address at
Flat No.301, 3rd floor, 139, Nazir
House, Cumballa Hill, Mumbai 400
036. ….Defendants
AND
1 Shri. Sushil Kantilal Jain
of Mumbai an adult Indian Inhabitant
residing at 2/8, Saraswat Sadan, Opp.
KEM Hospital Gate No.5, Dr. Borges
Road, Parel, Mumbai 400 012.
2 Shri. (Dr.) Manoj Kantilal Jain
of Mumbai an adult Indian Inhabitant,
residing at Flat No.4, 2nd floor, Rawal
Terrace, Opp. KEM Hospital Gate
No.4, Dr. Borges Road, ParelMumbai
400 012.
3 Smt. Anita w/o. Mahavirji Jain
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CS No. 72118 2 Suit No.448708
an adult Indian Inhabitant residing at
810, Badrishree Bilaya, 22nd Main
Road, 37th Cross, Jayanagar, 4th T
Block, Bangalore 560 041
4 Smt. Meena w/o Vinod Porwal
of Mumbai an adult Indian Inhabitant
residing at 323, D/2, 1st floor,
Gokulnagar, Geeta Sadan, Bhiwandi
421 302.
5 Smt. Tulsi Kantilal Jain
of Mumbai an adult Indian Inhabitant
residing at 2/8, Saraswat Sadan, Opp.
KEM Hospital Gate No.5, Dr. Borges
Road, Parel, Mumbai 400 012. ….Applicants
Appearance:
Shri. Darshit Jain, Advocate for plaintiff.
Smt. Smita C. Tanna, Advocate for Defendant No.2.
CORUM : SMT. S.S. NAGUR,
AD HOC JUDGE &
ASST. SESSIONS JUDGE,
(C.R.NO.13)
DATE : 19/10/2019
ORAL ORDER
1) The Chamber Summons is filed by applicants who
are legal heirs of deceased plaintiff stating that they want to
proceed with the suit as the plaintiff expired on 02/02/2018. The
Chamber Summons is filed on 05/04/2008. The Chamber
Summons is supported by affidavit of Mr. Sushil Kantilal Jain.
2) The defendant No.2 filed reply by way of affidavit of
Vispi Bomi Gandevia and has objected to allow the Chamber
Summons on the ground that the applicants have not filed
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anything on record to show that they are legal heirs of deceased
plaintiff. The original plaintiff was Kantilal Otarmal. Present
applicants are Jain and Porwal. Therefore, they disputed
applicant's identity as legal heirs of deceased plaintiff. Hence,
prayed to reject the Chamber Summons.
3) The applicant filed rejoinder affidavit of Sushil
Kantilal Jain and filed xerox copies of the documents i.e. PAN
card of Sushil Kantilal Jain bearing PAN No.AAAPJ7615A, Adhar
card bearing No.981360395189 and passport. The applicant has
also relied on the xerox copy of ration card which shows the
names of family members of Kantilal Otarmal.
4) Heard Advocate Shri. Darshit Jain for plaintiff and
Advocate Smt. Smita C. Tanna for defendant No.2. I have also
gone through the written arguments filed by defendant No.2.
5) The plaintiff has filed the suit by name 'Kantilal
Otarmal'. Entire proceedings he has used his name as Kantilal
Otarmal. Therefore, now the defendant No.2 is disputing the
identity of the present applicant that the deceased plaintiff
always used name as Kantilal Otarmal and never used Jain.
Therefore, the applicant should have filed succession certificate
and /or certificate to show that they are legal heirs of deceased
plaintiff.
6) Advocate Smt. Smita C. Tanna for defendant No.2
has drawn my attention to the title clause in the Chamber
Summons to show that the applicants have written name of
deceased plaintiff as “Kantilal Otarmal Jain”. Entire suit and
miscellaneous applications the name of the deceased plaintiff is
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written as Kantilal Otarmal. Therefore, the applicants cannot
change title of the suit/ plaint.
7) The Chamber Summons shows the name of the
plaintiff as “Kantilal Otarmal Jain”. In the entire suit deceased
plaintiff has stated name as “Kantilal Otarmal”. Therefore, the
applicants at this stage cannot change the title clause in respect
of name of the deceased plaintiff.
8) The Chamber Summons to bring on record the legal
heirs of deceased plaintiff is within limitation. Death certificate
produced by the applicants shows the name as Kantilal Otarmal
Jain residential address “flat No.8, 2nd floor, Saraswat Sadan,
Parel, Mumbai – 400 012”. On perusal of address of the
documents produced by the applicants the same address is
shown. Advocate Shri. Darshit Jain for plaintiff stated that the
address in the title of plaint is office address. The documents
relied by the applicants shows that the legal heirs of deceased
plaintiff. The dispute of the defendant is only in respect of
surname Jain not mention in the plaint. It is the case of the
defendant that they are legal heirs of deceased plaintiff.
Considering the documents on record relied by the applicant the
applicants are legal heirs of deceased plaintiff. The suit is for
recovery of Rs.6,49,901/. Hence, applicant wants to contest the
suit to recover amount from the defendant being legal heirs of
the deceased plaintiff. Hence, pass following order:
ORDER
1. The Chamber Summons is made
absolute in terms of prayer
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clause (a).
2. Plaintiff to carryout necessary
amendment within the period of
limitation.
3. Accordingly, the Chamber
Summons is disposed of.
(S.S. Nagur)
Date : 19/10/2019 AdHoc Judge &
Asst. Sessions Judge,
City Civil Court,
Greater Mumbai.
Dictated on : 19/10/2019
Transcribed on : 22/10/2019
Signed on : 22/10/2019
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“CERTIFIED TO BE TRUE AND CORRECT, COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
DATE & TIME OF UPLOADING : NAME OF STENOGRAPHER
04/11/2019 & 11.37 a.m. : Mrs. Shobha Ashok Shekade
Name of the Judge (with Court no.) : HHJ Smt. S.S. Nagur
(CR no. 13)
Date of pronouncement of Judgment/ : 19/10/2019
Order
Judgment/Order signed by the P.O. on : 22/10/2019
Judgment/Order uploaded on : 04/11/2019
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