Final Order 1

Order Details: Chamber summons
Pdf Text: C/S No.1089/18 1 Suit No.2774/14
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
CHAMBER SUMMONS NO.1089/2018
IN
S.C SUIT NO.2774/2014
Dilip Mahadev Chavan .. Plaintiff
Versus
M/s. Blue Lotus Jewellery Pvt. Ltd & Ors. .. Defendants
And
Dattaram Shankar Kadam & Ors. .. Respondents.
Appearance :
Ld. Adv. Mr. Pawar for the plaintiffs.
Ld. Adv. Mr. Gude for defendants no.1 to 3.
None for defendants no. 4 to 10.
CORAM : HHJ Shri V.V Vidwans
C. R. No.03
DATE : 26.8.2019.
ORAL ORDER
1. This chamber summons (C/S) is taken out by the plaintiff
for seeking condonation of delay in setting aside abetment and bringing
LRs of defendant on.7 on record. The C/S is supported by an affidavit of
plaintiff Dilip Chavan and copy of death certificate of defendant no.7
Vandana Kadam and the schedule stating proposed amendment in the
plaint. Seen and considered the same.
2. I have heard Ld. Counsels for both sides.
3. It is submitted that, the plaintiff has filed this suit for
declaration and perpetual injunction against defendants and is pending
at the stage of hearing of notice of motion taken out by the plaintiff and
for filing of WS. In the meanwhile, the defendant no.7 had expired
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C/S No.1089/18 2 Suit No.2774/14
leaving behind the respondents as mentioned in the C/S as legal heirs
and representatives. As relations between the plaintiff and defendant
no.7 were not cordial, he could not have knowledge of the death of the
defendant no.7 immediately but he came to know about the same from
defendants no.8,9 and 10 as late as in the month of January' 2018 when
they had informed the plaintiff about the death of defendant no.7 but
did not furnish details of the legal heirs and her representatives.
4. It is further submitted that, as per information received by
the plaintiff, defendant no.7 has died on 28.1.2017 in Mumbai and
cause of action survives. Present C/S is taken out on 19.3.2018
immediately after getting information of the legal heirs and
representatives of the defendant no.7. As such there is no delay in
taking out the C/S. However, if the court comes to the conclusion that
there is delay in moving this Court for setting aside abetment and
bringing L.Rs of the defendant no.7 on record, same is liable to be
condoned in the interest of justice.
5. As per submissions made before the court and in view of
the death certificate of defendant no.7 filed along with C/S vide Exh.A
and schedule of proposed amendment, it becomes clear that the present
C/S is taken out after 90 days of 28.1.2017 when the defendant no.7
had died, however the plaintiff had no knowledge or information about
the said event and the plaintiff came to know about the same in the
month of January 2018. Thereafter at the earliest possible present C/S
is taken out, therefore though there is delay in taking out C/S in the
present case, it cannot be said to be deliberate or intentional. However,
because as the cause of action survives, it would be desirable to allow
the present C/S in the interest of justice by setting aside the abetment
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C/S No.1089/18 3 Suit No.2774/14
and allowing the prayer clause seeking necessary amendment of plaint
in the array of parties in the pleadings and subject to nominal costs.
Hence, I proceed to pass following order:
ORDER
1. Chamber Summons No.1089/2018 is hereby
allowed and made absolute subject to plaintiff
depositing cost of Rs.1000/ in the office of
District Legal Services Authority (DLSA), Mumbai
within two weeks from today.
2. If the plaintiff complies with the above direction
then the plaintiff shall be allowed to carry out the
proposed amendment as per schedule submitted
along with C/S and supporting affidavit within
two weeks thereafter. The plaintiff shall submit
the amended copy of plaint on record as well as
provide copy to the defendant as per procedure.
3. If the plaintiff fails to comply with the direction
of depositing the cost, the C/S shall stand
dismissed, without further reference to the court.
4. C/S stands disposed of accordingly.
(V.V. Vidwans)
Judge, City Civil Court,
Date: 26.8.2019 Gr. Bombay (C.R. 03)
Dictated on : 26.8.2019
Typed on : 26.8.2019
Signed by HHJ on : 27.8.2019
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C/S No.1089/18 4 Suit No.2774/14
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON :28.8.19
TIME: 5.30 pm . (NITIN V. UBALE)
SELECTION GR. STENOGRAPHER.
Name of the judge (with Court Room No.) Shri V.V. Vidwans, Judge (C.R. 03)
Date of pronouncement of Judgment/ Order 26.8.19
Judgment/ order signed by P.O on 27.8.19
Judgment/ order uploaded on 31.8.19
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