Final Order 1

Order Details: Chamber summons
Pdf Text: 1 Chamber Summons No.1067/2018
in L.C. Suit No.1839/2015
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
Chamber Summons No.1067 of 2018
(CNR NO. MH CC010075292018)
In
L.C. SUIT No.1839 OF 2015
Vasant Dhaku Adawade ….Plaintiff
V/s.
The Municipal Corporation of Gr. Mumbai & ors.
....Defendants
Appearance:
Mr. P.N. Kulkarni, Advocate for the plaintiff.
Mrs. Chandramore, Advocate for the defendant No.1
CORAM : HER HONOUR JUDGE
JAYSHRI R. PULATE
(C.R.NO.12)
DATE : 16 th January, 2020.
ORDER
1. By this chamber summons, plaintiff has prayed for carrying
out amendment for declaration that Mrs. Vimal Vasant Adawade, first
wife of plaintiff is dead as her whereabouts are not known since more
than 7 years.
2. In affidavit in support, it is averred that the suit is filed
against the defendants for direction and other reliefs as set out in the
plaint in respect of his pension claim. He got married with Mrs. Vimal
Vasant Adawade in the year 1986 and after passing of 1 ½ years, she left
matrimonial home forever. In spite of diligent search, whereabouts of
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2 Chamber Summons No.1067/2018
in L.C. Suit No.1839/2015
Mrs. Vimal Vasant Adawade were not known. Therefore, the plaintiff
married to Vaishali Vasant Adawade in the year 1990 who is staying with
him.
3. It is further averred that the plaintiff retired from his service
in August 2014 by superannuation. Before retirement, he wanted to
register the name of his wife Mrs. Vaishali Vasant Adawade in the
pension record. However, the concerned officers of defendant No.1
refused to register the name of wife of plaintiff as he could not produce
any proof as to his divorce with his first wife Mrs. Vimal Vasant
Adawade. Earlier, chamber summons No.869/2016 for amendment of
plaint was made absolute for impleading State of Maharashtra in the
array of defendant wherein Para No.6A and 6B in the plaint were
added. For all these reasons, it is prayed that the chamber summons may
kindly be made absolute.
4. To this chamber summons, learned Advocate for defendant
No.1 filed reply and strongly objected for the amendment. According to
defendant No.1, the plaintiff is seeking the relief of declaration of civil
death of first wife which is different cause of action. The plaint no where
discloses about missing person Mrs. Vimal Vasant Adawade. Therefore, it
is prayed that the chamber summons may kindly be dismissed with cost.
5. Heard both the sides. Vide order dated 19.09.2016 in
chamber summons No.869/2016, the State of Maharashtra is added as
defendant. Para No.6A and 6B were added in the plaint which reflects
that during the hearing of notice of motion it was transpired that name
of second wife of plaintiff can not be recorded for the pension claim of
plaintiff due to legal hurdle in the matter and from 1986 onwards more
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3 Chamber Summons No.1067/2018
in L.C. Suit No.1839/2015
than 7 years have passed and it is legal position that if there are no
whereabouts of any person for 7 years, the said person can be declared
as dead.
6. On perusal of plaint, it appears that the suit is filed for
directing the defendants to issue pension and other retirement benefits to
the plaintiff by deleting the name of first wife Mrs. Vimal Vasant
Adawade and for issuance of pension per month to plaintiff who retired
on 01.08.2014 as Security Guard. Though para No. 6A and 6B as
mentioned above were added in the plaint as per the order in chamber
summons No.869/2016, the plaint no where discloses that Mrs. Vimal
Vasant Adawade is missing since 1987. Further more, the nature of relief
will be changed if the prayers in the chamber summons are allowed.
Further more, the cause of action for said relief will be different where as
cause of action for filing the present suit is different. Therefore, I am of
the opinion that chamber summons does not require favourable
consideration as it will completely change the nature and relief claimed
in the suit. Resultantly, I pass following order.
ORDER
1. Chamber Summons No.1067/2018 is dismissed.
2. Chamber Summons No.1067/2018 stands disposed off
accordingly.
(Jayshri R. Pulate)
Judge
City Civil Court,
Gr. Bombay
Date : 16/01/2020
Dictated on : 16.01.2020
Transcribed on : 17.01.2020
Signed on : 20.01.2020
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in L.C. Suit No.1839/2015
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
21.01.2020 12.55 p.m. Ms. Ujwala J. Bhagat.
Name of the Judge H.H.J. Jayshri R. Pulate.
(Court Room No.12)
Date of pronouncement of Order 16.01.2020
Order signed by P.O. on 20.01.2020
Order uploaded on 21.01.2020
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in L.C. Suit No.1839/2015
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