Final Order 1

Order Details: Chamber summons
Pdf Text: CS No.1532/2019 ..1.. Suit No.8420/2002
CNR No. MHCC010086532019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
CHAMBER SUMMONS NO.1532 OF 2019
IN
SUIT NO.8420 OF 2002
Cian De Souza .. Plaintiff
Versus
Arun Gunjal and another .. Defendants
Mr. Amit Potnis, advocate for plaintiff
Mr. Vyas, advocate for defendant No.2
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 06th December, 2019
ORAL ORDER
Chamber summons is taken out by the plaintiff to condone delay
caused if any in taking out present chamber summons and to set aside
order of abatement against defendant No.1 and further, to allow him to
bring legal heirs of deceased defendant No.1 on record as per schedule
annexed to chamber summons.
Plaintiff further prayed to allow him to carry out amendment as
per schedule annexed to chamber summons.
2. It is the contention of plaintiff that he has filed suit under
section 6 of the Specific Reliefs Act against defendants. Due to his poor
health condition he could not remain present on many occasions for
cross examination in the present matter. At the time of cross
examination, it came to his notice that prayer regarding dispossession
was not mentioned in prayer clause of the plaint. Therefore, he
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instructed his advocate to take out chamber summons to rectify said
error. Accordingly, his advocate drafted chamber summons and he
affirmed it on 16.07.2018 at Goa and sent it to his advocate. On
18.07.2018, his advocate gave copy of chamber summons to advocate
for defendant before registering the same. On 24.08.2018, before his
advocate could tender the chamber summons which was affirmed on
16.07.2018, advocate for defendant pointed out to him that defendant
no.1 had expired long back and on 24.09.2008 advocate for defendants
had informed to his then advocate on record about death of defendant
No.1 and his legal heirs. His present advocate had received copy of
letter dated 24.09.2008 written by advocate for defendants on
24.08.2018 in the Court along with copy of death certificate of
defendant No.1. It is further contended that 10 years has passed after
death of defendant No.1, matter had appeared many times before this
Court however it was not known to him regarding the death of
defendant No.1 and neither advocate appearing for defendants pointed
about the same to him. Because of which delay has been caused in
taking out present chamber summons. Delay caused in taking out
chamber summons is unintentional. After getting information by his
advocate, his advocate issued letter dated 24.08.2018 to the advocate of
defendant making request to update names and addresses of legal heirs
of deceased defendant No.1 and advocate of defendant vide letter dated
12.09.2018 updated present addresses of legal heirs of deceased
defendant No.1.
3. It is further contended that since suit is filed under section 6 for
the Specific Reliefs Act the prayer under relevant section is required to
be sought from this Court. Therefore, he has also sought amendments in
that respect. Accordingly, he prayed for allowing chamber summons in
above terms.
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4. Defendant No.2 opposed chamber summons by filing reply. It is
contended that there is gross delay in filing chamber summons. Issues
were framed on 25.11.2014 and plaintiff has filed his affidavit of
evidence along with compilation of documents in the month of March,
2015 and matter has been posted for his cross examination. That being
so, at belated stage plaintiff cannot be allowed to rectify error which
has been ignored since institution of the suit. It is further contended
that defendant No.1 died long back on 30.06.2008 and immediately,
her advocate vide letter dated 24.09.2008 has informed to the advocate
for plaintiff about the death of defendant No.1 and legal heirs of
defendant No.1. There is delay of almost 11 years in taking out present
chamber summons. Therefore, same cannot be considered.
Accordingly, she prayed for dismissal of chamber summons.
5. Perused chamber summons, affidavit in support of it, reply of
defendant No.2 and entire record and proceeding of present matter.
Heard respective counsel for parties.
6. There are different prayers made in present chamber summons.
One part relates to the bringing legal representatives of deceased
defendant No.1 on record and in consequential to said prayer, prayers
for condoning delay caused in taking out chamber summons and to set
aside abatement have been made. In second part amendments in body
of plaint consequential to bringing legal representatives of deceased
defendant No.1 have been sought. In third part amendments have been
sought in prayer clauses by seeking incorporation of certain prayers.
7. So far as first part in relation to bringing legal representatives of
deceased defendant No.1 is concerned; it is matter of record that
intimation about death of defendant No.1 and his legal representatives
was given to previous advocate of plaintiff and time was granted for
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taking steps to bring legal representatives of deceased defendant No.1
on record. Copy of letter of advocate for defendant No.1 shows that
such intimation was given in September 2008 to the advocate for
plaintiff. Copy of death certificate shows that defendant No.1 died on
30.06.2008. Above facts demonstrate that there are latches on the part
of plaintiff in taking out present chamber summons. It is best known to
previous advocate for plaintiff as to why chamber summons was not
taken out to bring on record all legal representatives of deceased
defendant No.1. May it be so, but for the fault if any on the part of
advocate of the party, party should not suffer. In present case, although
plaintiff has not taken out chamber summons for bringing legal heirs of
deceased defendant No.1 but one of the legal heirs of deceased
defendant No.1 is already party to the suit as defendant No.2.
8. It is useful here to mention legal position expounded in
authority in the case of Mithailal Dalsangar Singh and others Vs. Annabai
Devram Kini and others, (2003) 10 Supreme Court Cases 691, wherein it is
held that:
“….8. Inasmuch as the abatement results in denial of hearing on the
merits of the case, the provision of abatement has to be construed
strictly. On the other hand, the prayer for setting aside an abatement and
the dismissal consequent upon an abatement, have to be considered
liberally.......”
9. The courts have to adopt a justiceoriented approach dictated by the
uppermost consideration that ordinarily a litigant ought not to be denied
an opportunity of having a lis determined on merits unless he has, by
gross negligence, deliberate inaction or something akin to misconduct,
disentitled himself from seeking the indulgence of the court. The opinion
of the trial Judge allowing a prayer for setting aside abatement and his
finding on the question of availability of 'sufficient cause' within the
meaning of subrule(2) of Rule (9) of Order 22 and of Section 5 of the
Indian Limitation Act, 1963 deserves to be given weight, and once
arrived at would not normally be interfered with by superior
jurisdiction.”
9. Keeping in view above legal position and facts of the matter that
when one of the legal representatives is already on record, in the
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interest of justice and equity it is desirable to condone the delay caused
in taking out chamber summons to bring on record rest of legal
representatives of deceased defendant No.1 and to set aside abatement
in relation to deceased defendant No.1.
10. So far as part II of schedule of chamber summons is concerned;
it is consequential to bringing on record legal representatives of
deceased defendant No.1 so propose amendments in that respect are
required to be allowed.
11. So far as part III of schedule of chamber summons is concerned;
plaintiff wants to make specific prayer in relation to declaration that he
has been dispossessed by defendants illegally and that he is entitled to
recover vacant and peaceful possession of suit premises. I would like to
mention that plaintiff has already sought possession of the suit premises
so no prejudice would be caused if the amendments seeking these
prayers are allowed to be incorporated in the plaint keeping open issue
of limitation if any.
12. In light of discussion made above chamber summons deserves to
be allowed subject to imposing heavy costs keeping in view conduct of
the plaintiff. Hence, pass following order:
ORDER
1. Chamber Summons No.1532 of 2019 is allowed and made
absolute in terms of prayer clauses (a) to (e) subject to payment of costs
of Rs.10,000/ (Rupees Ten Thousand only) to defendant No.2 within
period of two weeks from the date of this order.
Plaintiff is at liberty to deposit costs payable to defendant No.2
in the Court.
2. On payment of costs, plaintiff has to carry out amendment as
per schedule annexed to chamber summons. However, against the name
of legal representative No.1a it is to be mentioned that she is already
defendant No.2.
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3. Accordingly, chamber summons is disposed off.
(M. T. Asim)
Judge
Date : 06.12.2019 Gr. Bombay
Typed on : 06.12.2019
HHJ signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
09.12.2019, 11.30 a.m.
UPLOAD DATE AND TIME Mrs. S. P. Pawar
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. M. T. Asim
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
06.12.2019
JUDGMENT/ORDER signed by P.O.
on
07.12.2019
JUDGMENT/ORDER uploaded on 09.12.2019
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