Final Order 1

Order Details: Chamber summons
Pdf Text: C/s 856/18 in Su 2088/09 1/4 Date : 1.12.2018
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
CNR No.MHCC010001472009
CHAMBER SUMMONS NO.856/2018
IN
SUIT NO.2088/2009
Harkishandas P. Shah ]... Plaintiff
V/s.
M/s. Minerva Dealers Pvt. Ltd. & Ors. ]… Defendants
Adv. Bhandari for plaintiff.
Adv. Parag Shah for defendant no.1
Adv. Chetan Yadav for defendant no.2.
CORAM : HHJ Shri G. R. Agrawal
C. R. No.03
DATE : 1.12.2018
ORDER
(Dictated in open court)
By this chamber summons, the plaintiff is seeking
amendment of plaint. The defendants have filed their reply and
plaintiff has filed rejoinder.
2. Heard Ld. Counsel for the parties. Perused the record.
3. It is urged by the Ld. Counsel for plaintiff that the
original plaintiff Shri Harkisandas Shah expired on 15.4.2013. He
was 'Karta' of H.U.F. After his death, the name of respondent no.1
Mayank Shah was brought on record as 'Karta' of H.U.F. It is
further submitted that after demise of original plaintiff, there has
been family settlement between members of H.U.F. and it was
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C/s 856/18 in Su 2088/09 2/4 Date : 1.12.2018
dissolved as per registered family settlement dated 21.7.2014. As
per said settlement, the suit properties have divolved upon
respondents no.1 & 2 as joint owners i.e. Mayank 80% and Lilavati
20%. Therefore, it is prayed that the names of respondents be
permitted to brought on record.
4. The Ld. Counsel for defendant has opposed the chamber
summons on the ground that the suit is already abated due to death
of original plaintiff in the year 2013. The applicants did not take
any steps to take out chamber summons within time. Therefore,
they have filed this chamber summons to amend the plaint under
Order 22 Rule 10 of CPC. He submitted that Order 22 Rule 10 shall
not be applicable and the respondents ought to have filed
application under Order 22 Rule 3, which is already time barred.
He therefore, prayed that the chamber summons be rejected.
5. There is no dispute that the original plaintiff
Harkishandas has expired on 15.4.2013. Thereafter, one of the
present applicants, Mayank Shah, was brought on record as the
present 'Karta' of H.U.F. Now by the proposed amendment, the
applicants who are the son and wife of deceased Harkishandas
want to bring their names on record on the ground that there is a
registered family settlement dated 21.7.2014. As per said
settlement, the applicant Mayank Shah is 80% owner and wife of
deceased is 20% owner of the suit property. Thus, the proposed
amendment is filed on the basis of devolution of interest in the suit
property.
6. In the case of Ghafoor Khan V/s. Bashir Khan,
1982(3)SCC 486, the Hon'ble Apex Court has observed that such a
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C/s 856/18 in Su 2088/09 3/4 Date : 1.12.2018
case is of devolution of interest and the case falls under Order 22
Rule 10 of CPC and there will be no question of abatement.
7. In the case of Rikhu Dass V/s. Som Dass, 1976(1) SCC
103, the Hon'ble Apex Court has held that when a suit is brought
by or against a person in a representative capacity and there is a
devolution of the interest of the representative, the rule that has to
be applied is Order 22, Rule 10 and not Rule 3 or 4, where the
devolution takes place as a consequence of death or for any other
reason. Order 22 Rule 10 is not confined to devolution of interest
of a party by death, it also applies the cases where there is a
devolution due to retirement or resignation from the office.
8. The record shows that name of one of the respondents i.e.
Mayank Shah was already brought on record. Therefore, there was
no question of abatement of the suit. In view of the devolution of
interest, the respondents are entitled to be brought on record in
place of deceased plaintiff. Hence, the submission of Ld. Counsel
for defendant that the suit has abated cannot be accepted.
However, there is substantial delay in filing the present chamber
summons for amendment. Hence, applicants are liable to pay cost.
Hence, following order.
ORDER
1. Chamber summons no. 856 of 2018 is made absolute
in terms of prayer clause (a) subject to payment of
cost of Rs.2,000/ to the Library of City Civil Court Bar
Association within two weeks.
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2. If cost is paid, necessary amendment be carried out
as per the schedule of chamber summons in two
weeks.
(G. R. Agrawal)
Judge
City Civil Court,
Date : 1.12.2018 Gr. Bombay.
Dictated on : 1.12.2018
Typed on : 4.12.2018
Signed on : 4.12.2018
“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
4.12.2018 at 1.40 pm (Mrs. S. W. Tuscano)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
room no.)
HHJ Shri G. R. Agrawal, C.R.
No.3
Date of Pronouncement of
JUDGMENT/ORDER
1.12.2018
JUDGMENT/ORDER signed by
P.O. on
4.12.2018
JUDGMENT/ORDER uploaded
on
4.12.2018
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