Final Order 1

Order Details: Chamber summons
Pdf Text: ..1.. CHAMBER SUMMONS NO. 961/2018
MHCC010070922018
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
CHAMBER SUMMONS NO. 961/2018
IN
S.C. SUIT NO.8780 OF 1998
Niru @ Nina Chhabria. …Plaintiff
Versus
1. Payal Gupta @ Shokey d/o
Lakhpatrai Aggarwal.
2. Ramesh Aggarwal. ...Defendants.
And
1. Ms. Sneha Gupta.
2. Ms. Shikha Menon Nee Gupta. ...Proposed defendants.
Advocates
Ms. Jyotsna Vyas for the plaintiff.
Advocate for defendant absent.
CORAM : HIS HONOUR JUDGE
Sunil T. Soor.
(COURT No.: 2)
DATED : 15th December, 2020
ORAL ORDER
Plaintiff taken out this chamber summons for bringing
legal heirs of defendant no.1 on the record. Perused the chamber
summons alongwith documents, affidavit and pursis filed by advocate
for proposed defendants stating that his written arguments filed in
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..2.. CHAMBER SUMMONS NO. 961/2018
notice of motion no.3371/2019 be treated as reply to present chamber
summons. Heard advocate for plaintiff. Advocate for defendant absent.
2. From the perusal of record, it appears that plaintiff taken
out present chamber summons for bringing legal heirs of defendant
no.1 on the record as per schedule attached to said chamber summons.
Defendant no.1 is expired on 04.05.2017.
3. Contention of plaintiff is that advocate for plaintiff came
to know on 08.08.2017 that defendant no.1 is expired. Advocate for
defendant no.1(deceased) appeared on 24.10.2017 before the Court.
On 23.11.2017, matter was before the Court Receiver. Advocate for
defendant no.1 was directed to submit name and address of legal heirs
of defendant no.1 by 30.11.2017 in the office of Court receiver and also
to supply the copy of it to advocate for the plaintiff. After receiving
name and address of legal heirs of defendant no.1, affidavit in support
of chamber summons to bring legal heirs of defendant no.1 was
prepared and affirmed on 01.03.2018. Court was not sitting on
03.03.2018. Hence, chamber summons could not be filed and matter
was adjourned to 10.04.2018. On the same day, copy of chamber
summons was served on advocate for defendant no.1 and matter was
adjourned for reply and chamber summons made returnable to
15.06.2018. On repeated request, advocate for defendant no.1 gave
name and address of the legal heirs of defendant no.1 vide letter dated
31.01.2018 by post. Thus delay is caused in filing chamber summons in
bringing legal heirs of defendant no.1 on record. Hence prayed for
allowing chamber summons to bring legal heirs of defendant no.1 on
record.
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..3.. CHAMBER SUMMONS NO. 961/2018
4. It appears that defendant no.1 is expired on 04.05.2017.
Suit is for declaration of ownership of plaintiff in respect of flat A-18
and B-45 situated at Vallard View, 9th floor, Haji Ali Corner, Tardeo
Road, Mumbai 400 034 and for permanent injunction. Considering
nature of suit, cause of action survives to legal heirs of defendant no.1
and 2. Advocate for defendant no.1 informed to advocate for plaintiff
vide his letter dated 30.01.2018 by post about name and address of
legal heirs of defendant no.1. Chamber summons no.961/2018 is
affirmed on 01.03.2018. On 01.03.2018, Court was vacant. Suit is not
still abated against defendant no.1. Provisions of section 5 of the
Limitation Act applies to provisions of order 22, Rule 4 of the C.P.C. for
bringing legal heirs of deceased defendant on record if cause of action
survives to his legal heirs. It is already held that considering nature of
suit, cause of action survives to legal heirs of defendant no.1. Parties are
close relatives of each other. Hence no prejudice would cause to
defendants. Under the facts and circumstances, present chamber
summons is liable to be allowed. In the result, following order.
ORDER
1. Chamber summons no.961/2018 is allowed and made absolute
in terms of prayer clause (a).
2. Plaintiff to carry out consequential amendment as per present
chamber summons and file amended copy of plaint incorporating all
amendments till date within 14 days from the date of this order.
3. Plaintiff to serve copy of amended plaint to proposed defendants
and other defendants.
4. Chamber summons no. 961/2018 is disposed of.
(Sunil T. Soor)
Judge
Date : 15.12.2020 Gr. Mumbai.
Typed on : 15.12.2020
HHJ signed on : 15.12.2020
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..4.. CHAMBER SUMMONS NO. 961/2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
DATED 15.12.2020, 5.30 p.m.
UPLOAD DATE AND TIME Mrs. V. N. Rajgole.
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. S. T. Soor
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
15.12.2020
JUDGMENT/ORDER signed by P.O.
on
15.12.2020
JUDGMENT/ORDER uploaded on 15.12.2020
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