Final Order 1

Order Details: Chamber summons
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IN THE COURT OF CITY CIVIL COURT AT GR.BOMBAY
CHAMBER SUMMONS NO.1309 OF 2019
IN
S.C. SUIT NO.9431 OF 2000
1.Khatunbai @ Khatijabai wd/o. Hussain
Ali Meherali and ors ..Plaintiffs
V/s
1.Zarina wd/o. Sherali Hasanali
Charaniya and ors ..Defendants
and
1. Akbar Pyarali Khoja and ors ..Respondents
(proposed plaintiff nos.2a to 2d)
and
5.Al Nashir Pabani and ors ..Respondents
(proposed deft nos.3a to 3f)
Ld. advocate Shah for the plaintiffs.
Adv. Redekar for defendant nos.1(a), 1(b) and 2
CORAM: HIS HONOUR JUDGE SHRI M.SALMAN AZMI
DATE: 31/07/2019
ORAL ORDER
1. This chamber summons is for bringing the legal heirs
of plaintiff no.2 and defendant No.3. Plaintiff no.2
expired on 24/05/2019 leaving behind respondent
nos.2a to 2d as her legal heirs. Defendant no.3
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expired on 08/05/2014 leaving behind respondent
nos.3a to 3f as her only legal heirs.
2. Ld. Counsel for the plaintiffs submitted that
application for brining the legal heirs of plaintiff no.2
is well within the period of limitation. He would
submit that the plaintiffs recently came to know
about the death of defendant no.3 and thereafter
obtained the death certificate on 10/07/2019. The
original defendant no.3 was residing at United
Kingdom and therefore the plaintiffs were not having
any knowledge of her death. The plaintiffs therefore
prayed that present chamber summons be allowed.
3. The chamber summons is strenuously opposed by
defendant no.1(a) and (b) and 2 on the count that
the proposed plaintiffs and defendants are not the
legal heirs of plaintiff no.2 and defendant no.3
respectively. He would submit that the suit was
dismissed for default and at the time of restoration of
the suit in the year 2016, notices were issued to the
defendants and Court believed on the affidavit of the
plaintiffs that the notice was served upon to
defendant no.3 when it has come on the record that
defendant no.3 was not alive at that time. Therefore
they would submit that the plaintiffs have suppressed
this material fact on record.
4. He would submit that suit is abated way long back
and even at the time of restoration of the suit,
defendant no.3 was not alive and therefore present
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chamber summons needs no consideration.
5. At the outset it is settled position of law that the
application for bringing the legal heirs on record
impliedly include the prayer for setting abatement.
Therefore the objection of the defendants in this
regard is not worth.
6. It is contended by the Ld. Counsel for the plaintiffs
that at the time of restoration of the suit the notices
were issued to the defendants and on receipt of the
acknowledgment, the plaintiff filed the affidavit of
service. Had it been the case that plaintiffs were
aware that defendant no.3 was not alive, the
plaintiffs would have taken the steps. Ld. Counsel
for the plaintiffs submitted that the plaintiffs have
not suppressed any fact with the Court. It is
apparent that plaintiffs have annexed the death
certificate of defendant no.3 which shows the death
of defendant no.3 on 08/05/2014. If the plaintiffs
intended to suppress the said fact they would have
not been produced this certificate at this juncture.
7. The other limb of argument of the Ld. Counsel for
defendant is that respondent nos.2a to 2d are not the
legal heirs of plaintiff no.2 and proposed defendant
i.e. respondent nos. 3a to 3f are not the legal heirs of
defendant no.3. At this juncture there is no material
to ascertain the same. It would be too early to jump
to the said conclusion. The question involved in this
suit is for declaration of ownership of the plaintiffs
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and defendant no.3 as regard the suit properties on
the fact that the plaintiffs and defendant no.3 are the
owners by virtue of succession. The rival claim of
defendant nos.1 and 2 that they are the legal heirs of
erstwhile owner. Therefore, considering the nature
of dispute between the parties, it is for the plaintiffs
and defendant no.3 to establish their title over the
suit properties and hence in that background the
objection put forth by the defendants is not worth.
There is considerable delay in filing the application
for bringing on record the legal heirs of defendant
no.3, therefore defendant nos.1(a) and 1(b) and
defendant no.2 are required to be compensated with
costs. In view of the above discussion, it is just and
expedient to pass following order:
ORDER
1. Chamber Summons no.1309/2019 is allowed
in terms of prayer clause (a) to (c) subject to cost of
Rs.5,000/ to be paid to the defendant nos.1(a), 1(b)
and 2 within a period of one week from today.
2. The plaintiffs to carry out the necessary
amendment within a period of one week from today.
3. Payment of cost is subject precedent.
4. Chamber summons is disposed off accordingly.
31/07/2019 M.SALMAN AZMI
CITY CIVIL COURT,
GR.MUMBAI.
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Dictated on : 31/07/2019
Transcribed on : 02/08/2019
Signed on : 03/08/2019
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
03/08/19 at 4.00 pm.
MRS.T.C.KAMBLE
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of
judgment/order
31/07/2019
Judgment and order signed by P.O. 03/08/2019
Judgment/order uploaded on 03/08/2019
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