Final Order 1

Order Details: Chamber summons
Pdf Text: CNR NO : MHCC010082992019. .1. CH/S. No. in 1480/2019
L.C. Suit No. 3505/2013.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
CHAMBER SUMMONS NO. 1480 OF 2019.
IN
L.C. SUIT NO. 3505 OF 2013.
Aziz-un-Nisa Mohd. Layeeq. …...……………….… … PLAINTIFF.
V/s.
M/s. Prime Trade Test Center Pvt. Ltd+1. …....…. ... DEFENDANTS.
Mohd. Layeeq Mohd. Siddique+5. …...………….. … APPLICANTS.
CORAM : Shri. A.G. Santani.
(Court Room No.11).
DATED : 6th August, 2024.
APPEARANCES :
Mr. Sumit Bansod, Ld. Advocate for the Plaintiff/Applicants.
Mr. Suraj Gaikwad, Ld. Advocate for the Defendants.
*****
01. The applicants have taken out this Chamber Summons (for
brevity the Ch/s.) for condonation of delay of about 4 years and 38 days
in filing of this Ch/s., for setting aside of abatement of this suit and for
their substitution as the Legal Representatives (L.Rs.) of late plaintiff, in
the cause title of plaint. Perused the Ch/s., the accompanying affidavit
of applicant No.1, say of the defendant and the Death Certificate of late
plaintiff. Heard.
02. Considering the record, the points for determination, along-
with my findings and the reasons therefor, are as under :
Sr. No. POINTS FINDINGS
(1). Whether delay in filing of this Ch/s.
needs to be condoned? …....…….......... .....Yes.
(2). Whether the applicants are entitled for
their substitution as the L.Rs. of late
plaintiff?.…………………....…….......... .....Yes.
(3). What Order ? .............…....................... …. As per final Order.
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CNR NO : MHCC010082992019. .2. CH/S. No. in 1480/2019
L.C. Suit No. 3505/2013.
-: REASONS FOR THE FINDINGS :-
AS TO POINT NOS.1 AND 2 :
03. By filing this Ch/s., the applicants came with specific case
that the original plaintiff was wife of applicant No.1. She filed this suit,
restraining her dispossession without following the due process of law.
She died on 21.06.2015, leaving behind the applicants as her only L.Rs..
On 21.08.2018, the advocate for applicant No.1 placed Vakalatnama on
record. However, at that time, the applicants, due to oversight, failed to
inform him about demise of the plaintiff. Moreover, they weren't aware
about the legal provisions and therefore, there had been delay in filing
of this Ch/s., which requires to be condoned. It was not intentional. As
such, abatement of the suit may be set-aside and they may be permitted
to substitute themselves on record. Supporting their claim, they placed
copy of Death Certificate of the plaintiff. Whereas, the defendant denied
this Ch/s. as time barred and the applicants failed to justify this delay.
04. Considering the rival submissions, at the outset, it is worth
to be noted that by this suit, initially, the plaintiff prayed for a perpetual
injunction, thereby restraining the defendants from demolishing the suit
shop and dispossessing her without following the due process of law. It
appears that, now, during pendency of the suit, the plaintiff died. Thus,
considering the suit reliefs, it can safely be arrived at that even after her
demise, right to sue survived in favour of the applicants, they being her
LRs. Even otherwise, they are the necessary parties to this matter, U/O. I
Rule 10 of the CPC, and as such, their prayer for substitution as her LRs.
can be considered. True it is that the suit is more than 10 years old and
there had been huge delay in filing of this Ch/s.. However, it is equally
true that their contest in this matter would facilitate this Court to decide
the issues effectively and finally. Further,no harm would be caused even
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CNR NO : MHCC010082992019. .3. CH/S. No. in 1480/2019
L.C. Suit No. 3505/2013.
to the defendants, if the applicants are substituted in the plaint. Coming
to their latches, while considering this Ch/s., it would be just to impose
costs upon them having further protracted this old trial. Consequently, I
answered point Nos. 1 and 2 in the affirmative and to answer point No.
3, I pass the following Order:
-: O R D E R :-
(i). Chamber Summons No. 1480/2019 is made absolute in
terms of prayer Clause (a) and (b) only, subject to payment
of costs of Rs. 5,000/- (Rs.Five thousand), in favour of the
DLSA, Mumbai, positively till the next date.
(ii). On payment of the costs, the applicants are called upon to
carry out the proposed amendment/substitution in the
cause title of plaint, within two weeks therefrom, and to
file copy of amended plaint simultaneously.
(iii). The parties to expedite the matter.
(iv). Chamber Summons No. 1480/2019 is, accordingly,
disposed of.
{A.G. Santani}
Mumbai. Judge,
Dated : 06.08.2024. City Civil Court, Mumbai.
Dictated on : 06.08.2024.
Transcribed on : 23.08.2024.
Checked and Signed on : 26.08.2024.
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CNR NO : MHCC010082992019. .4. CH/S. No. in 1480/2019
L.C. Suit No. 3505/2013.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
28.08.2024 at 12.47 p.m.
Name of the Stenographer
Mrs. S.R. Mejari
Name of the Judge (with Court Room No.) HHJ Shri A.G. Santani
(Court Room No.11).
Date of Pronouncement of Judgment/Order 06.08.2024.
Judgment/Order signed by P.O. on 28.08.2024.
Judgment/Order uploaded on 28.08.2024.
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