Final Order 1

Order Details: Chamber summons
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO.1186 OF 2019
IN
S.C. SUIT NO.157 OF 2018
Manoj S. Mishra & Amr. … Plaintiffs
V/s.
Smt. Rajkumari V. Mishra & Ors. … Defendants
And
Anupam Yogendra Mishra.
Present Karta Yogendra J. Mishra HUF. … Respondent.
Appearance:
Ms. Padmini Ld. Adv. for defendant Nos.2 to 4.
Mr. Sapkal Ld. Adv. for defendant Nos.5 to 7.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.
BORLEPWAR
(C.R.No.20)
DATED : 25th November, 2019
ORAL ORDER
1. Plaintiff No.1 Manoj Mishra filed this chamber summons to
allow him to amend the plaint to substitute the name of the Respondent
in place of defendant No.1 Yogendra J. Mishra as defendant No.1a.
2. In brief it is contention of the defendant No.1 that,
defendant No.1 i.e. Yogendra Jhabarmal Mishra died on 03.03.2019.
Therefore, the Respondent Anupam Yogendra Mishra be taken on
record as defendant No.1a and plaintiff No.1 be permitted to make
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consequential amendment, if any, in the plaint as per schedule filed
with this Chamber Summons.
3. Defendant Nos.2 to 4 and 5 to 7 through their advocates
have given no objection.
4. It is contention of the plaintiff No.1 that, he be permitted to
bring the respondent as defendant No.1a on record and make
consequential amendment in the plaint.
5. Perused xerox copy of the Death Certificate. Yogendra
Mishra died on 03.03.2019. This Chamber Summons is filed on
03.07.2019.
6. Perused Order 22 Rule 4 of the CPC. 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.
7. As per Order 22 Rule 4, Sub Rule 3 where within the time
limited by law no application is made under sub rule (1), the suit shall
abate as against the deceased defendant.
8. Perused Article 120 of Limitation Act. As per the said
Article legal representative of the deceased can be brought on record
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within 90 days from the date of the death of the defendant.
9. Perused Article 121 of the Limitation Act. As per the said
Article abatement of the suit can be set aside within 60 days from the
date of abatement of the suit.
10. Perused plaint. It is contention of the plaintiff in para No.1
of the plaint that defendant No.1 Yogendra J. Mishra is HUF
represented through its Karta Yogendra J. Mishra. Defendant No.2 to 4
are the legal heirs of Virendra J. Mishra who was the Karta of Virendra
J. Mishra HUF. After the death of Virendra J. Mishra, since there is no
male members in the family, hence, the said HUF is dissolved and
defendant Nos.2 to 4 are made parties being the legal heirs and
representatives of Virendra J. Mishra.
11. Defendant No.1 Yogendra J. Mishra died on 03.03.2019.
This Chamber Summons is filed on 03.07.2019. In this way the suit is
already abated against the defendant No.1. Hence, in the facts and
circumstances, the abatement of suit against the deceased defendant
No.1 can be set aside and delay in filing this Chamber Summons can be
condoned. The plaintiff No.1 can be permitted to bring Respondent as
defendant No.1a on record and to make amendment in the plaint as per
schedule. Hence following order:
ORDER
The Chamber Summons No. 1186/19 is allowed as under :
1. Abatement of Suit against Defendant No.1 because of his death is
hereby set aside.
2. Delay in filing this Chamber Summons to bring the respondent on
record is condoned.
3. Plaintiff No. 1 is directed to bracket name of defendant No.1
Yogendra G. Mishra since deceased.
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4. Plaintiff No.1 is permitted to make respondent as defendant No.
1a.
5. Plaintiff No.1 is permitted to make amendment as per schedule
filed with this chamber Summons in the plaint.
6. Plaintiff No. 1 is permitted to make consequential amendment in
the plaint, if any.
7. Plaintiff No.1 is directed to make amendment in the plaint within
14 days from the date of this order.
8. Plaintiff No.1 is directed to file on record amended copy of the
plaint for the court record, for added defendant No.1a and for
remaining defendants till next date.
9. Plaintiff No. 1 is directed to serve writ of summons with copy of
the plaint to the added defendant No.1a on required process.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
Dt.: 25/11/2019 City Civil Court, Gr. MUMBAI
Dictated on : 25.11.2019
Transcribed on : 26.11.2019
Signed on : 28.11.2019
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
29.11.19 at 12.35 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 25.11.19
Judgment/order signed by P.O. on 28.11.19
Judgment/order uploaded on 29.11.19
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