Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.2253 OF 2018
IN
SUIT NO.8280 OF 1984
Smt.Sushila N. Rungta (since deceased)
Nirajkumar N.Rungta & anr. ...Plaintiffs
V/s.
Sitaram Agarwal (since deceased)
Mrs.Pushpadevi S. Agarwal & ors. ...Defendants
Appearances:
Ld.Adv.Khopade for plaintiff.
Ld.Adv.K.S. Jain for defendants
CORAM : HIS HONOUR JUDGE
SHRI ABHIJEET A.
NANDGAONKAR
(C.R.No.20)
DATED : 05th January,2019
ORDER
By way of this notice of motion defendants sought permission to
take their written statement dt.22.02.2018 to the amended plaint.
2. In supporting affidavit of Mr.Tarun Sitaram Agarwal, defendant
NO.1(ii) submitted that, this suit was filed by late Chiranjilal Goenka,
the father of Smt.Sushila N. Rungta, who came on record of the suit
after his death as plaintiff. Smt.Sushila N. Rungta also expired on
07.09.2017. Thereafter, a draft chamber summons was filed after death
of Sushila Rungta and heirs were brought on record, which was
supported by some vague and untenable affidavit lacking in material
particulars before the Court on18.11.2017 exparte without serving the
copies thereof either upon defendants or upon their Advocate for
bringing themselves on record. The legal heirs has obtained the order
MHCC01-007272-2018
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from this Court by suppressing the material facts and by practicing
fraud upon the Court. The Advocates' assistant was present in the Court
at that time who was only shown draft chamber summons and required
to give her say. She objected the same. However. The order on
chamber summons was passed subject to the formal objection of
defendants. The noting of the roznama dt.18.11.2017 reads as copy
served to Advocate of defendants No.1 (i) to 1(iv) appears to have been
noted under some mistaken belief as will be born out from the
correspondence exchanged between the respective advocates of the
parties. Defendant submitted that, at the time of hearing on
18.11.2017 plaintiff's Advocate had not furnished any copies of the
chamber summons and affidavit in support after registering the same.
But even after expiry of two weeks the copies were never forwarded nor
serve upon defendants' Advocate by his letter dt.04.12.2017 addressed
to plaintiffs' Advocate after recording the same, called upon plaintiff to
serve the copies of their chamber summons along with affidavit in
support. The plaintiffs' Advocate along with his letter dt.05.12.2017
which was personally delivered on 12.12.2017 deliberately just three
days before the hearing of the suit which was fixed on 15.12.2017
forwarded the copies of chamber summons and affidavit. After going
through the affidavit in support of the chamber summons, defendants
noticed several defects and discrepancies therein and as such by their
Advocate letter dt.15.12.2017 pointed out the same to plaintiffs'
Advocate to clarify the same. However, no reply was given. The
defendants' Advocate, therefore, by another letter dt.16.12.2017 put the
said facts on record and requested the plaintiffs' Advocate to furnish the
amended copy of the plaint to enable them to file their written
statement.
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3. However, defendant submitted that, applicant for being brought
on record in the suit in place of the deceased party, the heirs of the
deceased are required to disclose their relationship with the deceased
and to state in their affidavit whether the deceased died testate or
intestate and by which law the deceased was governed. If the deceased
had died intestate, who were her heirs at the time of her death,
according to the law to which she was governed by disclosing her
relations with them. So called plaintiffs have stated nothing of this kind
in their affidavit in support of their draft chamber summons and not
disclosed their relationship. Therefore, they have obtained the order by
making a very vague and misleading affidavit and in fact by deliberately
suppressing true, substantial and material facts from the Court to
mislead this Court.
4. Defendant submitted that, it transpired that, the husband of the
deceased plaintiff Smt.Sushila N. Rungta was alive at the time of the
death of the deceased plaintiff Smt.Sushila N. Rungta. The so called
plaintiffs totally suppressed the said facts in the affidavit in support of
the chamber summons for the reasons best known to them. He was one
of the heirs of the deceased plaintiff late Smt.Sushila N. Rungta. What
happened to his share in the estate of late Sushila N. Rungta was
required to be explained in the affidavit in support whether he died
testate or intestate is not disclosed. In such circumstances, they
submitted that, the order obtained by plaintiff on 18.11.2017 bringing
them on record is totally wrongful, illegal and ineffective in law.
Hence, defendants have right to file additional written statement to that
effect. Therefore, if their amended written statement is not taken on
record, the grave irreparable loss, injury will be caused to the
defendants; whereas no harm, loss or prejudice will be caused to
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plaintiffs if same is taken on record. Therefore, they prayed that, notice
of motion be made absolute.
5. On behalf of defendant service affidavit tendered. But in spite of
service plaintiff failed to file their reply to this notice of motion.
However, they orally submitted their argument.
6. Heard learned Advocate Mr.K.S. Jain for defendant at length.
Perused the record and submissions.
7. The crux lies about the contentions in obtaining order of
legal heirs to be brought on record dt.18.11.2017
passed by my learned Predecessor. The roznama
dt.18.11.2017 specifically reads as under,
“Adv. Ms. Minal Chandnani I/b J. S. Chandnani for
plaintiff present. Adv. Ms. Rama Sharma h/f Adv. K. S.
Jain for defendant no. 1a to 1d present. Adv. for
plaintiff filed tendered draft CS. Copy served to Adv. for
defendant no. 1a to 1d. Adv. for defendant filed say on
draft CS and objected it. K.B. L.O. at 3.30 pm none
present.
ORDER BELOW DRAFT CHAMBER SUMMONS
Present Chamber Summons is to bring LRs of deceased
plaintiff on record. Affidavit in support of Chamber
Summons and copy of death certificate show that
plaintiff expired on 07.09.2017. So present Chamber
Summons is within limitation. Hence draft Chamber
Summons needs to be allowed. Hence the order,
1. Draft Chamber Summons allowed in terms of prayer
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clause (a), (b) and (c).
2. Plaintiff to comply on or before next date.
3. No order as to costs.
4. Draft Chamber Summons be registered for statistical
purpose.
Defendant no.1a to 1d in para 4 of their WS Exh.26
contended that they have adopted WS of original
deceased defendant no.1. In the situation there is no
need of additional issues.
Matter adj. for compliance to 30.11.2017”.
8. Therefore, from this roznama it is crystal clear that, draft
chamber summons was tendered on behalf of plaintiff to bring legal
heirs of deceased plaintiff on record and copy was tendered to the
Advocate for defendant No.1(i) to 1(iv) and they have filed their say on
the draft chamber summons and objected it. Therefore, question of
having no knowledge or suppressed the fact as alleged by defendant, in
this circumstances, about tendering draft chamber summons to bring
legal heirs of deceased plaintiff does not arise. The order dt.18.11.2017
is carried out and thereby the legal heirs of plaintiff was brought on
record. The defendants have not challenged that order till today.
Therefore, now question of raising objection about whether Smt.Susila
Rungta was died intestate or testate and whether under which law she
is governed and what are the relationship with legal heirs, will not arise
at all. Therefore, all the objections raised by way of this chamber
summons by defendant legal heirs No.1(i) to 1(iv) about order of the
chamber summons, which attains finality, has no substance and merit at
all. Now, it is to be noted here that, in the said order it was mentioned
that defendant No.1(i) in para No.4 of their written statement at Exd.26
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contended that, they have adopted written statement of original
deceased defendant No.1. Therefore, it was observed that, there is no
need of additional issues, if they have already adopted the written
statement filed by their deceased defendant and therefore, question of
permitting them to file additional written statement does not arise at
all. Even if the legal heirs of plaintiff are brought on record it has not
changed the nature of the suit or create a new case, and if it is so which
entitles defendants to rebut it by way of additional evidence. Hence,
whatever objection raised by defendants in this chamber summons
about fraud, making vague and misleading affidavit, badinlaw by
suppressing material facts; seems to be outcome of anxiety between
counsels, their juniors and parties which is not at all acceptable before
this Court at the backdrop of order of this Court dt.18.11.2017.
9. As such, I do not find substance in this notice of motion to be
considered for permitting these defendant Nos.1 (i) to 1(iv) to file
additional written statement on record. The authority filed in the case
of Dr.CHHOTALAL JIVABHAI PATEL v. VADILAL LALLUBHAI
MEHTA & ORS, Gujarat Law reporter 850 is in respect of The
Representation of People Act and Letters Patent clause, which have not
resemblance in the facts and circumstances placed on record in this
case. The next authority of Hon.Supreme Court in the case of
A.V.PAPAYYA SASTRY AND OTHERS Versus GOVE OF A.P. AND
OTHERS, (2007) 4 Supreme Court Cases 221 is in respect of Article
226,136 of Constitution of India for recalling the earlier order
pertaining to fraud has no relevance to the facts and circumstances of
this case.
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10. In view of above discussion, question of permitting defendants to
file additional written statement, as sought, by way of this notice of
motion does not arise at all. Therefore, notice of motion deserves to be
dismissed. The suit is of 1984. Which is dragged on the one or other
count. Hence, expedite trial of the suit is required. The issues are also
framed and matter is for recording evidence. It is also to be noted that,
matter was stayed by Hon.Bombay High Court in view of order in Writ
Petition No.269 of 2016 dt.25.04.2016, which was reported to be now
vacated. Therefore, suit needs to be proceeded further for recording
evidence. In such circumstances, parties are directed to bear their costs
and hence, I proceed to pass the following order :
O R D E R
1. Notice of Motion No.2253 of 2018 in Suit No.8280 of 1984
for permitting defendant Nos.1((i) to 1(iv) to file
additional written statement stands rejected.
2. Parties to bear their costs.
3. Matter being old be expedited for recording evidence of
plaintiff.
(ABHIJEET A. NANDGONKAR )
Judge, (C.R.No.20)
Dt.: 05/01/2019 City Civil Court, Gr. Mumbai
Dictated on : 05.01.2019
Transcribed on : 08.01.2019
Signed on :
kps/
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
11.01.19 at 11.01 a.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 05.01.19
Judgment/order signed by P.O. on 10.01.19
Judgment/order uploaded on 11.01.19
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