Final Order 1

Order Details: Chamber summons
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO.925 OF 2018
IN
SUIT NO.2679 OF 2012
(HIGH COURT SUIT NO.298 OF 2012)
M/s. K. Mahadeo & Co. Pvt. Ltd. ...Plaintiff
V/s.
Dwarkabai Ramchandra Kini & Ors. ...Defendants.
And
1. Pravin Jayawant Madhvi
2. Chintaman Jayawant Madhvi
3. Vindo Jayawant Madhvi ...Respondents/
{proposed defendant Nos.81 (a) to) 81(c)}
Appearances:
Ld. Adv.Mr.Pradeep Kadam for plaintiff.
Ld. Adv.Mr.Babu for defendant Nos.1 to 5 and 11 to 23.
Ld. Adv.Mr.Saleem Shaikh for defendant Nos.74 to 79.
CORAM : HIS HONOUR JUDGE
SHRI ABHIJEET A.
NANDGAONKAR
(C.R.No.20)
DATED : 20th August,2018
ORDER
By way of this chamber summons plaintiff prayed for bringing
legal heirs of deceased defendant No.81 on record by condonation of
delay.
2. In supporting affidavit plaintiff submitted that, defendant No.81
was reported expired on 20.07.2012. However, it was not informed to
them nor there was any communication about the death of defendant
No.81. The Original defendant No.81, who was filed criminal case
MHCC01-001411-2018
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bearing No.14/Misc./2008 in the Court of learned Metropolitan
Magistrate, Mulund. During the proceeding of the said case it was
came to the knowledge that said defendant No.81 was expired and the
fact came to the notice when plaintiff has challenged the issuance of
process order before Court of Sessions in Revision Application No.618
of 2008 and thereafter, in Writ Petition No.597 of 2009. As such they
prayed that to bring legal heirs of deceased defendant No.81 there was
delay and as soon as they came to the knowledge they immediately
moved this chamber summons after finding the legal heirs of defendant
No.81 i.e proposed defendant Nos.81(a) to 81 (c) along with their
addresses and now by way of this chamber summons they prayed that
legal heirs of defendant No.81 be add in the array of defendants.
3. After service of this chamber summons, defendant Nos.1 to 52,
defendant Nos.11 to 23 and defendant Nos.74 to 79 submitted their
reply on overleaf of the chamber summons. They have objected the
chamber summons by submitting that there was explanation of delay or
any supporting affidavit, as suit was already abated. Therefore, they
prayed that chamber summons be dismissed.
4. Heard learned Advocates for the respective parties. Perused the
chamber summons along with documents placed on record.
5. From the document placed on record it reveals that, defendant
No.81 expired on 20.07.2012. However, no information about his
death was communicated to plaintiff. Said fact was brought during the
proceeding of the criminal matter before learned Metropolitan
Magistrate and therefore, immediately plaintiff moved this chamber
summons. The reason mentioned is just and proper to condone the
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delay. Considering the nature of the suit between builder and the
parties, if plaintiff is permitted to bring legal heirs of deceased on
record; they will be having an opportunity to put forth their defence to
rebut the claim of plaintiff whatever raised by plaintiff. In such
circumstances, delay in bringing legal heirs of deceased defendant
No.81 needs to be condoned and plaintiff be permitted to carry out
necessary amendments to add proposed defendant Nos.81 (a) to 81 (c)
in the array of defendants for proper adjudication of the matter. It will
not change the nature of the suit nor cause prejudice to the other side
or cause irreparable loss to the parties. But to determine the real
questions of controversies involved between the parties the proposed
amendment is necessary. The question of bar of commencement of trial
or limitation does not arise. Due diligence is shown. If proposed
amendment is allowed and legal heirs of deceased defendant NO.81
bring on record it will subserve the ends of justice.
6. In such circumstances, chamber summons needs to be allowed. It
will be proper to direct the parties to bear their costs. Hence, I proceed
to pass the following order :
O R D E R
1. Chamber Summons No.925 of 2018 in Suit No. 2679 of
2012 is made absolute in terms of prayer clause (a), (b)
and (c).
2. The abatement order against defendant No.81 is set aside.
3. Delay in filing chamber summons is condoned and thereby
plaintiff is permitted to carry out amendment as per
schedule to add legal heirs of deceased defendant Nos.81
in the array of defendants.
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4. Plaintiff to carry out the amendments with in two weeks
from the date of order and placed amended copy of plaint
on record as well as supply amended copy of plaint to
defendants and proposed defendants.
5. After compliance of above order, plaintiff to issue writ of
summons to defendant Nos.81(a) to 81(c) with and filed
service affidavit to that effect.
6. Parties to bear their costs.
( ABHIJEET A. NANDGAONKAR )
Judge, (C.R.No.20)
Dt.:20/08/2018 City Civil Court, Gr. Mumbai
Dictated on : 20.08.2018
Transcribed on : 21.08.2018
Signed on : 21.08.2018
kps/
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
21.08.2018 at 5.50 p.m.
UPLOAD DATE AND TIME
(KISHOR PRAKASH SHERWADE)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI A.A.
NANDGAONKAR
(COURT ROOM NO.20)
Date of pronouncement of judgment/order 20.08.2018
Judgment/order signed by P.O. on 21.08.2018
Judgment/order uploaded on 21.08.2018
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