Final Order 1

Order Details: Chamber summons
Pdf Text: CS 1493/2019 in M.A.83/17 1 IN L.C. SU NO.3933/1984
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
CHAMBER SUMMONS NO.1493 OF 2019
CNR NO.MHCC010083672019
IN
MISCELLANEOUS APPLICATION NO.83 OF 2017
CNR NO.MHCC010107922017
IN
L.C. SUIT NO.3933 OF 1984
CNR NO.MHCC010001221984
Premji Ratansi Gada and Ors. ]… Plaintiffs
Versus
Hirji Keshavji Rangawala
1(a) Ketan Hirji Rangawala and Ors. ]...Defendants
Adv. Devrukhkar h/f Adv. Londhe for respondent No.1A, 1B and 2A
for plaintiff.
Adv. Ansari for respondent Nos.3 and 5 to 10
Adv. Rawade for respondent No.4 / MCGM.
CORAM : HIS HONOUR JUDGE
Shri S.D.Kulkarni
(Court Room no.4)
DATED : 26th April, 2022
O R A L O R D E R
1. Perused Chamber Summons, affidavit in support thereof,
documents filed by both the parties. Heard both the advocates at length.
2. The applicant stated that in the year 1997. There was
family arrangement in between family of the applicants. The said family
arrangement was come in existence in 1997 and the married sisters of
the applicant relinquish their rights. On the other hand applicant No.2
to 4, have relinquished their rights. Therefore, applicant No.1, is having
only right, title and interest in the suit property.
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3. Therefore, applicant prayed that the names of applicant
Nos.2 to 4 be deleted from the clause title of Miscellaneous Application
and for condonation of delay. The advocate for the applicants submitted
that it is also undisputed fact that the original plaintiff No.4, had died in
the month of April, 1996. The contention of the applicants that during
pendency of the suit in February 1997 there was family arrangement in
between the applicants and their family members therefore, married
sister of applicant No.1, have relinquished their rights, title and interest
in the suit property. It is further submitted by the applicant that the
original plaintiff No.3, was expired on 01.02.2011 but at that time the
hearing of the suit was concluded. Therefore, it is not necessary for the
plaintiff to bring L.R.’s of plaintiff No.3, on record. It is further alleged
by the applicant that in view of the provision of Order 22 Rule1 of the
Code of Civil Procedure Code, 1908 the right to sue survive and the
same is exclusively available to the applicant No.1., as to right the sue
survive therefore, suit will not be abated and there in question of
abatement of present M.A. Therefore, applicants are submitted that they
be permitted to delete the name of the applicant Nos.2 to 4 be allowing
Chamber Summons.
4. The advocate for the respondent opposed the Chamber
Summons by filing reply on record. The contention of the respondent
that it is come on record that applicant Nos.3 and 4 are not alive and
they are died long back. The applicant No.1 has not made any
application till today to bring legal heirs of applicant Nos.3 and 4 on
record. Therefore, the contention of respondents that the present
Miscellaneous Application is abated in view of the Order 22 of the Code
of Civil Procedure Code. Therefore, the respondents prayed that the
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CS 1493/2019 in M.A.83/17 3 IN L.C. SU NO.3933/1984
Miscellaneous Application be abated as applicant failed to bring on
record the L.R.’s of applicant Nos.3 and 4 within time limit therefore,
prayed for dismissal of the Chamber Summons.
5. The short story of the suit is that the father of the plaintiff
was tenant and residing in the suit property. The original plaintiff No.1
to 3 are the brothers and plaintiff No.4 is the mother. The suit property
became dilapidated therefore, defendant / MCGM issued notice to the
plaintiff being occupier of the suit property. The suit is filed by the
plaintiff for getting alternate accommodation and compensation. The
suit is decreed and plaintiffs are held eligible for alternate
accommodation and also held entitled for mesne profit, for better
understanding, I have reproduced the operational part of the judgment
so, applicants claiming tenants of the original premises. They have
seeking relief for alternate accommodation and compensation. So,
considering the nature of the suit it can not be said that all the plaintiffs
having joint and indivisible party to the suit having joint indivisible
right / share in the suit property. Therefore, after the death of one party
the right to sue does not survive on surviving plaintiff in that case the
suit is liable to be dismissed as a whole as abated in its entirety.
6. Here in this case it is not a joint and indivisible right. On
the other hand the right to sue survive on the surviving plaintiff as well.
Therefore, in my opinion the right to sue survive on surviving plaintiff
therefore, this Miscellaneous Application will not be abated as surviving
applicant entitled to proceed with the matter as right to sue survive.
The original plaintiff claiming tenancy right in the suit premises. It is
the case of the plaintiff that the father of the plaintiff namely Hasand G.
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Gada was the original tenant. So, here for continuing tenancy it is not
necessary to bring on record all the legal heirs. In such a case anyone
who is legal representative of the deceased on record is sufficient. Here
in this case though the original plaintiff i.e. applicant No.3 and 4 died
during pendency of the suit but, surviving plaintiff is entitled to
continue the suit being legal representative of the deceased applicant
7. I come to the conclusion that considering the nature of the
proceeding and Miscellaneous Application being the continuation of the
suit will not abate as right to sue survive on surviving plaintiff.
Therefore, applicant is entitled to deleted the names of applicant Nos.2
to 4 from the clause list. Hence, considering this, I pass the following
order :
ORDER
1. Prayer clause (a) and (b) of Chamber Summons No.1493 of 2019
is allowed and made absolute.
2. The plaintiff is directed to carry out the amendment within
stipulated period.
3. Chamber Summons No.1493 of 2019 in Miscellaneous Application
No.83 of 2017 in L.C. Suit No.3933 of 1984 is disposed of
accordingly.
(S.D.Kulkarni)
Adhoc Judge,
City Civil Court,
Date : 26.04.2022 Gr. Mumbai.
Dictated on : 26.04.2022
Transcribed on : 27.04.2022
Signed by HHJ on: 30.04.2022
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 11.00 a.m.
NAME OF STENOGRAPHER : Mrs. J.S. Chavan
Name of the Judge (With Court
Room no.)
HHJ Shri. S.D.Kulkarni
C.R. no.04
Date of Pronouncement of
JUDGMENT/ORDER
26.04.2022
JUDGMENT/ORDER signed by
P.O. on
27.04.2022
JUDGMENT/ORDER uploaded
on
09.05.2022
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