Final Order 1

Order Details: Chamber summons
Pdf Text: 1 C/S. No.1002/19 (LCS 3988/13)
MHCC010052202019
IN THE CITY CIVIL COURT FOR GREATER BOMBAY AT MUMBAI
CHAMBER SUMMONS No.1002 OF 2019
IN
LONG CAUSE SUIT No.3988/2013
Sunita Perminder Dahiya
& Anr. … Plaintiffs
Versus
1] The Assistant Commissioner
& 3 Ors. ... Defendants
A N D
1] Paryant s/o. Perminder Dahiya
2] Mahika Perminder Dahiya … Respondents
Appearance :
Mr. S. K. Sawant, Advocate for plaintiffs.
Mrs. Chavan, Advocate for defendant/Corporation.
CORAM : S. H. SALUNKHE,
JUDGE CITY CIVIL COURT,
COURT ROOM NO.4.
DATED : 30/07/2022.
O R D E R
. The plaintiff No.1 Sunita Perminder Dahiya took out this
Chamber Summons for setting aside order of abatement of suit and
bringing the legal heirs on record.
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2 C/S. No.1002/19 (LCS 3988/13)
2] It is contended that suit is filed to challenge notice issued
by defendant No.1 dated 30/3/2013 under Section 351 of The Mumbai
Municipal Corporation Act (in short, the M.M.C. Act). It is further
contended that during pendecy of suit on 21/1/2019 the plaintiff No.2
expired due to severe cardiac attack, who was backbone, of the family
and his sudden death brought great set back to family and due to that
the plaintiff No.1 could not keep track with suit.
3] Defendant/Corporation opposed Chamber Summons
contending that suit has been abated. No sufficient reason for the delay
in taking legal heirs on record is given. Present Chamber Summons is
not maintainable and there will be change in nature of suit, if the
proposed amendment is allowed. On these lines defendant/Corporation
prayed to reject Chamber Summons.
4] Defendants No.3 and 4 not filed reply to Chamber
Summons.
5] The matter was pending for hearing of Chamber Summons
however, none appeared for the plaintiffs and defendants No.3 and 4.
Heard advocate for the Corporation.
6] This suit is for declaration that notice dated 30/3/2013
under Section 351 of the M.M.C. Act be declared as null and void. The
alleged notice has been issued calling upon the plaintiffs to Show Cause
as to why unauthorised construction should not be demolished.
Considering the relief right to sue survive upon the legal heirs of the
deceased plaintiff No.2 present Chamber Summons has been taken out
on 24/5/2019. There is a delay of 4 days in filing Chamber Summons. It
is contention of the plaintiff No.1 that the plaintiff No.2 died due to
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3 C/S. No.1002/19 (LCS 3988/13)
severe cardiac attack and he was the sole backbone of the family and
his sudden death brought great set back to family which put
tremendous shock and distress to family of the plaintiffs, therefore, the
plaintiff No.1 could not keep track with suit. The reason put forth by the
plaintiff No.1 appears to be just and satisfactory. As far as abatement of
suit is concerned, the plaintiff No.1 filed this Chamber Summons to
bring legal heirs of the plaintiff No.2 on record. The plaintiff No.1, who
is one of the legal representatives of the plaintiff No.2, is also a party to
suit, therefore, suit will not abate and she being the legal heir of the
plaintiff No.2 always prosecute suit. Defendants No.1 and 2/
Corporation opposed Chamber Summons on the ground that no
sufficient reason has been given for delay in taking legal heirs on
record. However, the plaintiff No.1 contended that due to sudden death
of the plaintiff No.2 they were in shock and distress. Thus I find no
substance in the contention of defendant/Corporation that no sufficient
reason has been given by the plaintiff No.1 for delay. Further, it is
contention of defendant that there will be change in nature of suit
however, by proposed Chamber Summons the plaintiff No.1 is seeking
permission to delete name of the plaintiff No.2 and to bring the legal
heirs of the deceased plaintiff No.2 on record. As such, there is no likely
to change in nature of suit. The right to sue survive upon legal heirs of
the deceased plaintiff No.2. In the circumstances, Chamber Summons
deserves to be allowed. Hence I pass following order :
O R D E R
1] Chamber Summons No.1002/2019 in terms of prayer clauses (a)
and (b) is allowed.
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4 C/S. No.1002/19 (LCS 3988/13)
2] The plaintiff No.1 to carry out necessary amendment within
prescribed time.
3] The plaintiff No.1 to provide copy of amended plaint.
Date : 30/07/2022. ( S. H. SALUNKHE )
Judge City Civil Court,
Court Room No.4,
Gr. Mumbai.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
04/08/2022 03:15 p.m. V. V. Kulkarni
NAME OF STENOGRAPHERUPLOAD DATE TIME
Name of the Judge (With Court
Room No.)
H. H. Judge Shri. S. H. Salunkhe,
Court Room No. 4.
Date of Pronouncement of ORDER 30/07/2022
ORDER Typed on 03/08/2022
ORDER signed by P.O. on 04/08/2022
ORDER uploaded on 04/02/2022
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