Final Order 1

Order Details: Chamber summons
Pdf Text: C/S No.1371/19 1 Suit No.2619/14
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
CHAMBER SUMMONS NO.1371/2019
IN
S.C SUIT NO.2619/2014
Mrs. Pranoti Pradeep Patange ..Applicant/ Plaintiff
V/s.
1. Mr Vinayak Mahadeo Kale,
2. The Hon'ble Secretary ,
Indravadan CHS Ltd. … Defendants
And
1a. Vinita Vinayak Kale
w/o. Vinayak Kale,
1b. Mrunmai Vinayak Kale,
d/o. Vinayak Kale. .. Respondents.
Appearance :
Adv. Mr. Y.S. Bhate for plaintiff/ applicant.
Adv. Mr. Ghodke for defendants/ respondents.
CORAM : HHJ Shri V.V Vidwans
C. R. No.03
DATE : 28.8.2019.
ORAL ORDER
1. This chamber Summons (C/S) is taken out on behalf of the
applicant seeking amendment in the plaint; N/M No.3964/14 and N/M
No.1470/19, as per schedule annexed with the C/S. The C/S is
supported by an affidavit of plaintiff Pranoti Patange along with
AnnexureA consisting of death certificate of Vinayak Kale, who was
defendant in the suit.
2. I have heard Ld. Counsel for the applicant. He referred to
the affidavit in support of the C/S and submitted that, the plaintiff has
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C/S No.1371/19 2 Suit No.2619/14
filed the suit against the defendants for declaration in respect of suit
property about her ownership, right and for other consequential reliefs.
The plaintiff had taken out the N/M No.3964/14 for adinterim relief
and N/M No. 1470/19 for restoration of Suit No.2619/14, which had
been dismissed in default on 30.1.2019 for nonappearance of Counsel
for the applicant.
3. It is further submitted on behalf of the applicant that, as
per letter dated 8.6.2019 delivered by Counsel Prashant Karande
advocate for respondent on 12.6.2019 informing that the defendant
Vinayak Kale has died on 20.4.2019 leaving behind respondents as
mentioned in the C/S as his legal heirs and representatives i.e. his wife
Vinita Kale and daughter Mrunmai Kale. Copy of death certificate is
annexed with the C/S vide Ex.A.
4. Ld. Counsel for the applicant also submitted that, prior to
death of deceased defendant no.1 the suit premises stood in the name
of mother of the applicant Smt Shobhana Mahadeo Kale, who had died
on 1.3.2008. She had executed her Will on 17.2.2008 and had
bequeathed her property i.e. the suit premises in favour of the
applicant. The deceased Shobhana Kale had appointed Shashikant
Madhukar Kale as an Executor of her Will, who filed Probate Petition
No.1063/08 before Hon'ble High Court seeking Letter of Administration
of the will in question. The said Probate Petition was contested by the
defendant no.1 late Vinayak Kale and therefore, it was converted into
Testamentary Suit No.41/2009 and the said Testamentary Suit arising
from the Probate Petition is pending for final hearing before Hon'ble
High Court.
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C/S No.1371/19 3 Suit No.2619/14
5. In view of above subsequent developments and death of
defendant no.1, present C/S is taken out by the applicant seeking to
carry out amendment by taking on record legal heirs of the defendant
no.1, who are necessary parties to the suit. The C/S has been taken out
by the applicant within limitation from 20.4.20190. Hence, it deserves
to be allowed.
6 After going through the grounds stated in the supporting
affidavit of the C/S and after considering oral submissions made by the
Ld.Counsel for the applicant and respondent, I am satisfied that the C/S
as it stands cannot be allowed, because original suit has been already
dismissed and unless it is restored to file the remaining prayer in the
present C/S cannot be granted. Therefore, unless suit is restored the
amendment sought in the plaint cannot be carried out by the applicant.
The applicant will have to take necessary steps in that regard by moving
this Court by taking necessary steps. Hence, I proceed to pass following
order:
ORDER
1. Chamber Summons No.1371/2019 is hereby
disposed of with liberty to the applicant to take
appropriate steps in the matter.
C/S stands disposed of accordingly.
(V.V. Vidwans)
Judge, City Civil Court,
Date: 28.8.2019 Gr. Bombay (C.R. 03)
Dictated on : 28.8.2019
Typed on : 28.8.2019
draft given to HHJ on : 28.8.2019
Signed by HHJ on : 28.8.2019
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C/S No.1371/19 4 Suit No.2619/14
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON :31.8.19
TIME: 5.10 pm . (NITIN V. UBALE)
SELECTION GR. STENOGRAPHER.
Name of the judge (with Court Room No.) Shri V.V. Vidwans, Spl. Judge & Addl. Sessions
Judge (C.R. 42)
Date of pronouncement of Judgment/ Order 28.8.19
Judgment/ order signed by P.O on 28.8.19
Judgment/ order uploaded on 31.8.19
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