Final Order 1

Order Details: Chamber summons
Pdf Text: MHCC010082792019
CNR No.
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
CHAMBER SUMMONS NO.1446 OF 2019
IN
SUIT NO. 8992 OF 2000
(HIGH COURT SUIT NO.4146 OF 2000)
S.J. MANDREKAR & CO. AND ANR. ]..Plaintiffs.
V/s.
SHANTA S. KAUJALGI & ORS. ]..Defendants.
AND
PRABHAKAR S. KAUJALGI & ANR. ]..Respondents.
Appearance:
Advocate Ms. Nutan Moily for the Plaintiffs.
Advocate Mr. Pankaj Shah for Defendants.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.
BORLEPWAR
(C.R.No.20)
DATE : 26th OCTOBER, 2020.
ORAL ORDER
1. Plaintiffs took out this Chamber Summons to set aside
order of abatement dated 03.04.2019 of Suit against the defendant
MHCC01-008279-2019
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No.3, to permit plaintiffs to add Respondents as defendant No.3(a) to
3(b), to allow plaintiff to make consequential amendment in the plaint
and to condone the delay if any.
2. Perused Chamber Summons, affidavit in support of Chamber
Summons and say of defendant’s Advocate. Heard both sides.
3. Following points arise for my determination. I record my
findings thereof for the reasons mentioned below:
Sr.
No.
POINTS FINDINGS
1. Whether there is delay in taking out this
Chamber Summons ?
In the affirmative.
2. Whether delay can be condoned in taking
out the Chamber Summons ?
In the affirmative.
3. Whether Order of abatement dated
03.04.2019 of the suit against the defendant
No.3 can be set aside?
In the affirmative.
4. Whether defendants can be permitted to add
Respondents as defendant No.3(a) and 3(b)
in cause title of the plaint?
In the affirmative.
5. Whether plaintiffs can be permitted to make
consequential amendment in the plaint ?
In the affirmative.
6. What Order ? Chamber Summons
is partly allowed as
per final order.
REASONS
As to point Nos.1 to 6:
4. In brief, it is contention of the plaintiffs that defendant No.3
died on 23.11.2009. Plaintiffs took out Chamber Summons No.653 of
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2011 for deleting the name of defendant No.3 and the said Chamber
Summons is pending.
5. Defendant No.1 is widow of defendant No.3. Defendant No.2
is son of defendant No.3. The legal heirs of defendant No.3 are defendant
No.1 and 2. The plaintiffs No.1 and 2 are not aware any other legal heirs
of defendant No.3. Advocate for defendants had informed the plaintiffs
regarding death of defendant No.3 by letter dated 17.02.2018. Therefore,
plaintiff No.1 and 2 came to know about the death of defendant No.3.
6. Defendants have filed handwritten say through the Advocate
overleaf to the Chamber Summons. The Advocate of the defendants has
given no objection to allow the Chamber summons.
7. Perused xerox copy of the Death Certificate annexed with the
Chamber Summons. Date of Death mentioned in the Death Certificate is
23.11.2009. This Chamber Summons is filed on 05.08.2019. According
to the plaintiffs defendant No.3 is having two legal heirs i.e. defendant
No.1 and 2.
8. Perused xerox copy of the letter dated 17.02.2018 addressed
by the Advocate Mr. Pankaj S. Shah to the plaintiff’s Advocate. It is
mentioned therein that deceased defendant No.3 is survived by the four
persons.
9. Perused Death Certificate. The name of the deceased is
Shankar Rajappa Kaujalgi. Date of death is 23.11.2009. This Chamber
Summons is filed on 05.08.2019.
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10. Perused Order 22 Rule 4 Sub Rule 1 of the Code of Civil
Procedure. As per the said Rule where one or two or more defendants
dies and the right to sue does not survive against the surviving defendant
or defendants alone, or a sole defendant or sole surviving defendant dies
and the right to sue survives, the Court, on an application made in that
behalf, shall cause the legal representative of the deceased defendant to
be made a party and shall proceed with the suit.
11. Perused Order 22 Rule 4 Sub Rule 3 of the Code of Civil
Procedure. Where within the time limited by law no application is made
under sub rule(1) of Order 22 Rule 4 of the Code of Civil Procedure, the
suit shall abate as against the deceased defendant.
12. Perused Article 120 of the Limitation Act. As per the said
provision legal representative of the deceased plaintiff or appellant or of a
deceased defendant or respondent, can be made a party to the proceeding
within ninety days from the date of death of the plaintiff, appellant,
defendant or respondent, as the case may be.
13. Perused Article 121 of the Limitation Act. As per the said
provision Order of abatement can be set aside. Period of limitation is
sixty days to file application to set aside the abatement from the date of
abatement of the suit or proceeding.
14. Perused Section 5 of the Limitation Act, 1963. As per the
said provision any appeal or any application, other than an application
under any of the provisions of Order XXI of the Code of Civil Procedure,
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1908, may be admitted after the prescribed period, if the applicant
satisfies the Court that he had sufficient cause for not preferring the
appeal or making any application within such period.
15. Date of death of defendant No.3 is 23.11.1009. The
Chamber summons is filed on 05.08.2019. There is delay in taking out
this Chamber Summons. It is mentioned in the Chamber Summons that
plaintiffs were not aware of any other heirs of the deceased defendant
No.3. Therefore, considering the reasons mentioned in the Chamber
Summons I am of the opinion that the delay in taking out this Chamber
Summons can be condoned.
16. Perused Roznama / Noting dated 03.04.2019. It is observed
therein that plaintiffs did not take steps to take L.R.’s of defendant No.3
on record. Therefore, suit against defendant No.3 is abated.
17. Considering the grounds mentioned in the Chamber
Summons I am of the opinion that the order of abatement dated
03.04.2019 can be set aside. Plaintiff can be permitted to add
Respondents as defendant Nos.3(a) and 3(b) in the Cause title of the
plaint. Plaintiffs can be permitted to make consequential amendment in
the plaint. Plaintiffs prayed to allow to make amendments in other
proceedings. I am of the opinion that details of the other proceedings are
not given therefore, plaintiffs cannot be permitted to make amendments
in the other proceedings. Therefore, Chamber Summons can be partly
allowed. Hence, I record my findings to point No.1 to 5 in affirmative
and point No.6 Chamber Summons is partly allowed as per final order.
Hence, I proceed to pass the following order.
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ORDER
Chamber Summons No. 1446 of 2019 in Suit No. 8992 of 2000 (H.C. Suit
No. 4146 of 2000) is partly allowed as under-
1. Delay in taking out this Chamber Summons is condoned.
2. The order of abatement dated 03-04-2019 of Suit against defendant no.3
is hereby set aside.
3. Plaintiff's are permitted to add respondents as defendant no.3(a) and
3(b) in the cause title of the plaint.
4. Plaintiff's are permitted to make consequential amendment in the plaint.
5. Due to Covid-19 pandemic, it is not proper to give short time to comply
this order.
6. Plaintiff's are permitted to make amendment as directed above in the
plaint on or before 09-12-2020.
7. After carrying out amendment as directed above plaintiff's are directed to
file on record amended copy of the plaint for Court record and for
defendant's.
8. After carrying out amendment plaintiff to serve writ of amended plaint to
the added defendant no.3(a) and 3(b) on required process fee.
9. Plaintiff to serve copy of amended plaint to the defendant no.1 and 2.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
Dt.: 26/10/2020 City Civil Court, Gr. MUMBAI
Dictated on : 26/10/2020
Transcribed on : 08/12/2020.
Checked on : 10/12/2020
Signed on : 10/12/2020.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
City Civil Court, Gr. MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
11.12.2020 at 01.25 p.m.
UPLOAD DATE AND TIME
(VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S. G.
BORLEPWAR
(COURT ROOM NO.20)
Date of pronouncement of judgment/order 26.10.2020
Judgment/order signed by P.O. on 10.12.2020
Judgment/order uploaded on 11.12.2020
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