Final Order 1

Order Details: Chamber summons
Pdf Text: MHCC010059472019
CNR NO.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO.1090 OF 2019
IN
S.C. SUIT NO.3256 OF 2009
Mapletree Property Pvt Ltd. ]… Plaintiff
V/s.
Mrs Zarinabai Asgarali - deceased ]
And Ors. ]...Defendants.
Appearance:
Learned Advocate Ms. Sumedha Sawant for plaintiff.
None for defendants.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.
BORLEPWAR
(C.R.No.13)
DATED : 23rd March, 2021
ORAL ORDER
1. Plaintiff took out this Chamber Summons for condonation
of delay in taking out the Chamber Summons, for setting aside
abatement of the suit against the defendant No.1 and for permission to
amend the plaint.
MHCC010059472019
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2. Perused Chamber Summons, affidavit in support of
Chamber Summons. Heard Learned Advocate Ms. Sumedha Sawant for
plaintiff.
3. In brief, it is contention of the plaintiff that defendants
inspite of service of writ of summons did not appear and the matter is
proceeded ex-parte against them.
4. Plaintiff filed evidence and matter is at the stage of
arguments.
5. Deponent Vinoo Sanjay Munshi, Authorized signatory of
the plaintiff was discussing with the Advocate of the plaintiff regarding
final arguments of the suit. The Deponent informed to the plaintiff's
Advocate that defendant No.1 died. The plaintiff's Advocate informed
the deponent that it is necessary to make amendment in the plaint.
6. Defendant No.1 died on 07.10.2014. The said fact came to
the Notice of the deponent Vinoo Munshi on or above August, 2017. He
was under bonafied impression that the since the plaintiff's affidavit of
evidence is already filed on record and trial commenced and therefore,
it was not necessary for plaintiff to amend the plaint by deleting the
name of deceased defendant No.1 and bringing the LR's of defendant on
record. The Advocate for plaintiff informed to the Deponent that it is
necessary to amend the plaint and to bring LR.'s of defendant on record.
Therefore, delay be condoned.
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7. This Chamber Summons is registered on 17.06.2019. The
affidavit in support of Chamber summons is dated 23.04.2019.
Defendant No.1 died on 07.10.2014.
8. It is contention of plaintiff that deceased defendant No.1
died leaving behind heirs i.e. Proposed defendant Nos.1 and 2.
9. 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.
10. 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.
11. 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.
12. 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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13. 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.
14. Perused Section 5 of the Limitation Act, 1963. As per the said
provision any appeal or any application, other than an application
under any of the provisions of Order XXI of the Code of Civil Procedure,
1908, may be admitted after the prescribed period, if the applicant
satisfies the Court that he had sufficient cause for not preferring the
appeal or making any application within such period.
15. As per Order 1 Rule 10 Sub Rule 2 of the Code of Civil
Procedure the Court may at any stage of the proceedings, either upon or
without the application of either party, and on such terms as may
appear to the Court to be just, order that the name of any party
improperly joined, whether as plaintiff or defendant, be struck out, and
that the name of any person who ought to have been joined, whether as
plaintiff or defendant, or whose presence before the Court may be
necessary in order to enable the Court effectually and completely to
adjudicate upon and settle all the question involved in the suit, be
added.
16. Perused Order 1 Rule 10 of the Code of Civil
Procedure. As per Order 1 Rule 10 Sub Rule 2 of the Code of Civil
Procedure The Court may at any stage of the proceedings, strike out or
add parties.
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17. There is delay in taking out the Chamber Summons.
Considering the facts and circumstances and the grounds of delay, I am
of the opinion that delay can be condoned, abatement of suit against
the defendant No.1 because of his death can be set aside, plaintiff can
be permitted to bring LR's on record and to make amendment in the
plaint. Hence, following order:
ORDER
Chamber Summons no. 1090 of 2019 in Suit no. 3256 of 2009 is
allowed as under-
1. Delay in taking out this Chamber summons is hereby condoned.
2. Abatement of Suit because of death of original defendant no.1 is
hereby set aside.
3. Plaintiff is permitted to bring proposed defendant no.1 and 2 as
defendant no. 1a and 1b in the plaint.
4. Plaintiff is allowed to make amendment in the plaint as per
schedule A annexed to the Chamber Summons.
5. Due to Corono Virus Covid-19 Pandemic, it is not proper to permit
the plaintiff to carry out the amendment within 14 days from the date
of this order.
6. Plaintiff is directed to carry out amendment as directed above till
next date.
7. Plaintiff is directed to file on record amended copy of the plaint for
Court record after carrying out amendment.
8. Plaintiff is directed to serve copy of the amended plaint with writ of
summons to the added defendant no.1a and 1b and also defendant no.2
to 4 on required process fee.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.13)
Dt.: 23/03/2021 City Civil Court, Gr. MUMBAI
Dictated on : 23.03.2021
Transcribed on : 30.03.2021
P.O. is on leave from
30.03.2021 to 01.04.2021
Checked on : 09.04.2021
Signed on : 09.04.2021 ( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.13)
City Civil Court, Gr. MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
09.04.2021 at 03.50 p.m.
UPLOAD DATE AND TIME (VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S. G.
BORLEPWAR
(COURT ROOM NO.13)
Date of pronouncement of judgment/order 23.03.2021
Judgment/order signed by P.O. on 09.04.2021
Judgment/order uploaded on 09.04.2021
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