Final Order 1

Order Details: Chamber summons
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO.1097 OF 2019
IN
SUIT NO.8202 OF 1994
(HIGH COURT SUIT NO.907 OF 1994
1. Mabel Pereira (since deceased) ]
1(a) Claude Pereira ]
2. Sybel D'Mellow ] ...Plaintiffs
Versus
1. Mrs. Rita Anthony D'Lima ]
2. Mr. Gordon Anthony D'Lima ]
3. Mrs. Silvia George D'Lima ] ...Defendants.
Appearances :
Adv. Vidita Bhalekar for deft No. 12(b) to 12(f) present.
Adv. Aditya Kanchan for defendant No. 16 and 17 present.
Adv. Avnendra Kumar for deft No. 18 present.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.
BORLEPWAR
(C.R.No.20)
DATED : 22nd January, 2020
ORAL ORDER
1. The Plaintiff has taken out this Chamber Summons to
condone the delay in filing the Chamber Summons to bring LR's on
record, to permit plaintiffs to bring on record L.R's of defendant No.12
and to permit to amend the plaint consequently.
MHCC01-006003-2019
-- 1 of 8 --
2 CHS 1097/19 in
SC Suit 8202/94
2. Perused Chamber Summons, affidavit in support of
Chamber Summons, affidavit in reply of defendant No.12(b) to 12(f).
Heard both the sides.
3. Following points arise for my determination. I record my
findings thereof for the reasons mentioned below:
Sr. No. POINTS FINDINGS
1. Whether there is delay in filing this
Chamber Summons to bring the LR's on
record ? If Yes, whether delay can be
condoned ?
In the affirmative.
2. Whether plaintiff can be permitted to
bring LR's of defendant No.12 on
record?
In the affirmative.
3. What Order ? Chamber Summons
is made absolute as
per final order.
REASONS
As to point Nos.1 to 3:
4. In brief, it is contention of the plaintiff that the suit was
listed on 06.12.2017, the Representative of defendant No.12 informed
the Court that defendant No.12 is expired on 10.07.2016. Thereafter
Advocate for the plaintiff addressed the letter dated 15.12.2017 to the
Advocate of defendant No.12 to provide details of legal heirs of
defendant No.12. The Advocate of defendant No.12 informed by letter
dated 22.12.2017 only the name of legal heirs of defendant No.12.
Thereafter, plaintiff informed to his Advocate to take necessary steps to
bring the LR's on record. The Advocate of plaintiff informed him that
unless he is brought on record, the LR's of defendant No.12 cannot be
-- 2 of 8 --
3 CHS 1097/19 in
SC Suit 8202/94
brought on record. The Advocate of plaintiff had drafted Chamber
Summons but the plaintiff was not brought on record, therefore,
Chamber Summons could not have been filed on record. The plaintiff
was brought on record vide order dated 21.10.2018 and matter was
adjourned for compliance on 21.10.2018. Thereafter, the plaintiff was
not well. Therefore the Chamber Summons was not finalized. Hence,
there is delay in filing the Chamber Summons to bring the LR's on
record. It be condoned and plaintiff be permitted to bring the LR's on
record.
5. Defendant No.12(b) to 12(f) filed reply. In brief, it is
contention of the defendants that there is delay to file the Chamber
Summons to bring the LR's on record. Defendant No.12 died on
10.07.2016. Therefore, the Chamber Summons be dismissed on the
ground of delay itself. The advocate of defendant No.12(b) to 12(f)
addressed letter dated 05.8.2016 to the advocate of plaintiff and
informed that defendant No.12 died on 10.7.2016. Advocate of plaintiff
also acknowledged the receipt of said letter dated 05.08.2016. Inspite
of it, plaintiff did not take steps to bring the LR's of defendant No.12 till
December, 2017. The plaintiff has not approached to this Court with
clean hands. All the other contentions are denied. Delay is not
bonafide. Hence, Chamber Summons be dismissed.
6. Learned Advocate appearing for plaintiff relied on the
Judgment of Hon'ble Bombay High Court in the Case of Stephen Laslie
Victor D'Souza & Ors. Decided Chamber Summons No.1081 of 1997
in Suit No.1164 of 1996 dated 26.02.1998.
-- 3 of 8 --
4 CHS 1097/19 in
SC Suit 8202/94
7. I have gone through the citation. In the cited case
application to bring LR's on record was filed. One of the defendants
was dead at the time of filing the suit. The plaintiff was not aware
about the death of the said one of the defendants. Since plaintiff came
to know about the death, he files application to bring LR's on record. It
is observed there was bonafide mistake on the part of the plaintiffs in
filing the suit against dead person and therefore, plaintiff in the cited
case was permitted to bring the LR's on record.
8. The Learned Advocate appearing for defendant No.12(b) to 12(f)
relied upon two citations. Ist Citation is of Hon'ble Supreme Court of
India in the case of Puran Singh Vs. State of Punjab, AIR 1996
Supreme Court 1092. In the cited case Respondent died during
pendency. It is held Order of 22 of Code of Civil Procedure is not
applicable to the writ proceedings. However, it is incumbent on the
part of Petitioner to substitute legal heirs of respondent within a
reasonable time.
9. IInd citation is of Hon'ble Supreme Court of India in the
case of Perumon Bhagvathy Devaswom Vs. Bhargaviamma (dead)
by LR's & Others, (2008) 8 Supreme Court Cases 321. In the cited
case Respondent died. It is held, if the appellant is aware of the death
and fails to take steps to bring LR's as respondent on record then it is
not sufficient cause to condone the delay to bring the LR's as respondent
on record. It is further observed non listing of appeals for considerable
time contribute to ignorance of appellant, and it must be kept in mind.
-- 4 of 8 --
5 CHS 1097/19 in
SC Suit 8202/94
10. Defendant No.12 died on 10.07.2016. According to the
plaintiff the death of defendant No.12 is informed in the Court on
06.12.2017. According to the Advocate of defendant No.12(b) to 12(f)
death of defendant No.12 is informed by letter dated 05.8.2016.
11. Perused Order 22 Rule 4 of the Civil Procedure Code. As
per Order 22 Rule 4 Sub Rule 1 of the Civil Procedure Code, where one
of 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. Perused Order 22 Rule 4 Sub Rule 2 of the Civil Procedure
Code. As per said provision any person so made a party make any
defence appropriate to his character as legal representative of the
deceased defendant.
13. Perused Order 22 Rule 4 Sub Rule 3 of the Civil Procedure
Code. As per the said Sub Rule 3 where within the time limited by law
no application is made under subrule(1) of the Order 22 Rule 4 the suit
shall abate as against the deceased defendant.
14. Perused Article 120 of the Limitation Act. As per the said
provisions the legal representatives of deceased plaintiff or appellant or
of a deceased plaintiff or appellant or of a deceased defendant or
-- 5 of 8 --
6 CHS 1097/19 in
SC Suit 8202/94
respondent, can be bring on record within 90 days from the date of
death of the plaintiff or defendant as the case may be.
15. Perused Article 121 of the Limitation Act. As per the said
provision period of limitation is sixty days from the date of abatement
of suit to set aside an order of abatement.
16. The death of defendant No.12 is on 10.07.2016. This
Chamber Summons is filed on 14.6.2019. If for a moment it is
presumed that plaintiff came to know about the death of defendant
No.12 on 06.10.2017 or on 05.08.2016, even though there is delay to
bring the LR's on record.
17. Perused Chamber Summons No.2495 of 2015. It was filed
to bring on record legal heirs of original plaintiffs. It is contended in
the said Chamber Summons that original plaintiff No.1 expired on
30.09.2000 and original plaintiff No.2 expired on 03.07.2000. Said
Chamber Summons was allowed as per Order dated 31.10.2018. In
view of order passed in Chamber Summons No.2495 of 2015 plaintiff
No.1(a) is brought on record on 19.01.2018. The suit is filed in the
year 1994 by two plaintiffs. Plaintiff No.1 died on 30.09.2000 and
plaintiff No.2 died on 03.07.2000 and plaintiff No.1(a) is brought on
record on 19.01.2018. It means on the date of death of defendant
No.12 i.e. on 10.07.2016 and also on 5.8.2016, plaintiff No.1(a) was
not party to the proceedings. Therefore, in the facts and circumstances
the delay to bring the LR's of defendant No.12 can be condoned and
defendant No.1(a) can be permitted to bring the LR's on record.
Hence, I record my findings to point Nos.1 and 2 in the affirmative and
-- 6 of 8 --
7 CHS 1097/19 in
SC Suit 8202/94
point No.3 the Chamber Summons is made absolute as per final order.
Hence following order:
ORDER
Chamber Summons No.1097/19 in Suit No.8202/94 is made
absolute as under :
1. Delay in filing this CS to bring the LR's of defendant no. 12 on
record is hereby condoned.
2. Plaintiff No.1(a) is permitted to bring the LR's of deceased
defendant no.12 on record as per schedule filed with this
Chamber Summons.
3. Plaintiff no.1(a) is directed to carry out amendment as mentioned
above within 14 days from the date of this order.
4. Plaintiff is permitted to make consequential amendment if any, in
the plaint within 14 days from the date of this order.
5. Plaintiff is directed to file on record amendment copy of the
plaint for court record, for defendants and the said added LR's till
next date.
6. Plaintiff is directed to serve amended copy of the plaint to the
defendants and file on record service affidavit for the same.
7. Costs in cause.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
Dt.: 22/01/2020 City Civil Court, Gr. MUMBAI
Dictated on : 22/01/2020.
Transcribed on : 23 & 24/01/2020.
Signed on : 27/01/2020.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
City Civil Court, Gr. MUMBAI
-- 7 of 8 --
8 CHS 1097/19 in
SC Suit 8202/94
“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
28.01.2020 at 03.46 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 22.01.2020
Judgment/order signed by P.O. on 27.01.2020
Judgment/order uploaded on 28.01.2020
-- 8 of 8 --