Final Order 1

Order Details: Chamber summons
Pdf Text: CS 1483-19 in Suit 1391/18 1
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
CHAMBER SUMMONS NO. 1483/2019
IN
S.C. SUIT NO. 1391/2018
(CNR No. MHCC010083222019)
Mali Developers Pvt Ltd. and Ors. .. Plaintiff
Versus
Shailesh I. Trivedi and ors. .. Defendants
Appearances :
Ld. Adv. Mr. Rajesh Chheda for plaintiff.
Ld. Adv. Mr. Abhishek Adke for defendant nos. 2 and 3.
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 03
Date : 29.9.2021.
ORDER
1. The Plaintiff has filed instant Chamber Summons seeking
following reliefs :
(a) that the delay of around 302 days be condoned.
(b) that the abatement order dated 12.10.2018 be set aside.
(c) that the name of the present defendant no.1 be deleted from
the title of the Plaint and name of proposed Defendant
no.1(a) be substituted in the title of the Plaint in the present
Suit and amendment in the cause title of the Plaint and cause
title of Notice of Motion bearing no. 3159/2018 and as
sought more particularly stated in the schedule in this
Chamber Summons and consequential amendment be
allowed.
(d) cost of the application be provided for
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(e) Any other order as this Court may deem fit and proper be
passed.
2. It is contended by the plaintiff that, the defendant no.1 has
expired on 9.1.2018. The aforesaid fact was informed by the
defendant's Advocate, which was duly recorded in Roznama dated
2.7.2018. Defendant no.1 left behind his son and daughter as his only
legal heirs. Wife of the defendant no.1 has also expired. The defendant
no.3 is the son of defendant no.1 and Darshi is the daughter of
defendant no.1. As far as regarding defendant no.3 is concerned, he is
already on record, who is also one of the legal heirs of the defendant
no.1. Therefore, the daughter of defendant no.1 is required to be added
as a party to the present Suit.
3. It is further contended that, by mistake, the plaintiff
mentioned name of the father of the defendant nos.2 and 3 as
'Shailesh'. In fact, his name is 'Satish'. Hence, the plaintiff may be
allowed to correct the typographical error.
4. It is further contended that, previous Advocate of the
plaintiff did not communicate the abatement of Suit against the
defendant no.1. On 12.10.2018, the plaintiff got knowledge of the
abatement of the Suit against the defendant no.1. Thus, there is delay
of 311 days in bringing legal heirs of the defendant no.1 on record. It is
contended that, the delay is bonafide and the right to suit survives
against the L.Rs of defendant no.1. Hence, the plaintiff may be allowed
to carry out necessary amendments as per Schedule.
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5. The Chamber summons is opposed by the defendant no.3
by filing his reply. It is contended that, there are no specific allegations
against deceased defendant no.1. The plaint itself is vague, filed with an
intention to harass the defendants. The defendant did not give sufficient
reasons for condonation of delay. Hence, it is prayed for dismissal of the
Chamber Summons.
6. Heard both sides. Perused Chamber Summons, reply as
well as pleadings of the Plaint. It is a specific case of the plaintiffs that,
they are developers developing the suit land. However, the defendants
causing obstructions in the development work by making complaints
with various authorities. Therefore, the plaintiff constrained to file
present Suit against defendants, seeking following reliefs :
(a) this Hon'ble Court be pleased to grant a permanent order of
injunction restraining Defendant's, their servants , agents,
representatives and/or any person acting on their behalf,
obstructing the plaintiff and their representatives from
carrying out redevelopment activities over the Suit property
being the building standing as "Trivedi Niwas no.II"
admeasuring 378 sq. yards situated at plot no. 317 A,
Balchandra Road, Matunga mentioned in Exhibit L.
(b) Pending the hearing and final disposal of present suit,
Defendants, their servants, agents, representatives or any
person acting on their behalf be restrained by an order of
injunction of this Hon'ble Court restraining and/or
obstructing the plaintiff and their representatives from
carrying out redevelopment activities over the suit property
being the building standing as "Trivedi Niwas no.II"
admeasuring 378 sq. yards situated at plot no.317 A,
Balchandra Road, Matunga mentioned in Exhibit L.
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(c) adinteirm reliefs in terms of prayer clauses (b) above.
(d) such other and further orders may kindly be passed as this
Hon'ble Court may deem fit and proper in the facts and
circumstances of the case.
7. It is argued by Ld Advocate for the plaintiff that, there is
communication gap between earlier Advocate and the plaintiff. Hence,
the Suit is abated against defendant no.1. Per contra, Ld Advocate for
the defendant no.3 vehemently argued that, the allegations of
obstruction made against the defendants are neither against particular
defendant nor any specific relief is sought against particular defendant.
Hence, the allegations are personal in nature against the defendants.
Therefore, there is no question of bringing legal heirs of the defendant
no.1 on record. It is contended that, the right to sue does not survive.
Hence, the defendant prayed for rejection of the Chamber Summons.
8. I have perused the allegations made in paragraphs 11,13
and 16. No doubt those allegations made against personal conduct of
the defendants. The plaintiff did not mention the conduct of individual
defendants. As per allegations of the plaintiffs, the defendants
obstructed their work of redevelopment. However, the plaintiff prayed
for grant of permanent injunction not only against defendants but also
against their representatives. The claim of the plaintiff over the suit
property is based on certain documents. In the event of end of the trial,
if the plaintiff is succeeded in the suit, the order will be binding on the
legal heirs of the defendant no.1. In that eventuality, if the proposed
defendant is not added, I am of the opinion that, a great injustice will
be caused to such nonadded legal heirs of the defendant no.1.
Therefore, I am of the view that, the plaintiff should be allowed to carry
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out necessary amendment, as prayed.
9. As far as regarding correction in the name of the father of
the defendant no.3 is concerned, I am of the view that, it is formal in
nature and no prejudice would be caused to the defendants.
10. As far as regarding condonation of delay is concerned, no
doubt the plaintiff did not give satisfactory reasons to condone the
delay. But, looking to the reliefs claimed by the plaintiff, I am of the
view that the aforesaid delay can be condoned, subject to payment of
reasonable costs. Thus, I proceed to pass following order :
ORDER
1. Chamber Summons No.1483/2019 is allowed in terms of
prayer clauses (a)(b) and (c), subject to payment of costs of
Rs.5000/ to defendant no.3.
2. Plaintiff to bear costs of the Motion.
3. Chamber Summons is disposed off accordingly.
(A.H.Laddhad)
Judge,
City Civil and Sessions Court,
Dated : 29.9.2021 Greater Bombay.
Dictated on : 29.9.2021
Typed on : 29.9.2021
Draft Submitted on : 29.9.2021
Signed on : 30.9.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
30.9.2021, at 4.20 p.m (Nitin V. Ubale)
UPLOAD DATE AND TIME Selection Gr. Stenographer(Gr.1)
Name of the Judge (With Court room no.) Shri A.H.LADDHAD
(C.R. No.3)
Date of Pronouncement of JUDGMENT/ ORDER 29/09/2021
JUDGMENT/ORDER signed by P.O. on 30/09/2021
JUDGMENT/ORDER uploaded on 30/09/2021
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