Final Order 1

Order Details: Notice of Motion
Pdf Text: NM3213-19 in Suit no.3517-09
1 Date :21.01.2020
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 3213 OF 2019
IN
SUIT NO. 3517 OF 2009
(CNR MHCC01 0087832019 )
Tarun Kapoor & Ors. .. Plaintiffs
Versus
Nanki Chellaram Chellani & Ors. .. Defendants
Appearances :
Adv.Sushant Yadav i/b Sushant Yadav i/b Kashar and
Company.
Adv.Kamal Saigal for defendant no.3.
Coram : His Honour Judge
Shri. A.H.Laddhad
Judge
CR No. : 07
Date : 21.01.2020
ORDER
1. The plaintiff has filed instant Notice of Motion for
condonation of delay of 1369 days in filing instant Notice of
Motion and to set aside abatement of suit against defendant no. 1
and 2 and also to condone the delay in filing application for setting
aside abatement.
2. It is the contention of the plaintiff that they have filed
present suit for specific performance of the Agreement of Sale
dated 15.09.2008 which was entered into between plaintiffs and
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defendant no. 1. During pendency of the trial, the defendant no. 1
passed away on 07.10.2010. Accordingly, the plaintiff took out
Chamber Summons No. 1664 of 2010 whereby the defendant no.
2 was substituted in place of defendant no. 1 as her legal heir.
3. It is contended by the plaintiff that in and around July 2015,
the plaintiffs learned that defendant no. 2 also expired. Therefore,
plaintiffs tried to contact with the other defendants for knowing
legal heirs of defendant no. 2 but as nobody appearing for the
defendants, therefore, the plaintiff could not able to collect names
of legal heirs of defendant no. 2. Thereafter, the plaintiff
addressed letter dated 30.08.2016 to the advocate of defendant
no. 3 and 4 to get information about the surviving legal heirs of
defendant no. 2, so that, plaintiffs could take appropriate steps.
However, no information was received to the plaintiffs, therefore,
plaintiffs in or about August 2016, filed Notice of Motion No. 3286
of 2016 under Order 22 Rule 4(a) of C.P.C. for appointment of
officer of the Court to represent the interest of deceased defendant
no. 2. In the aforesaid Notice of Motion, the defendant no. 3
appeared in person and on 11.11.2016 he has tendered his reply,
disclosing the facts that the defendant no. 2 has two surviving
legal heirs being his nephew Mr. Rohit Arjun Das Dua and Mahesh
Arjun Das Dua. However, the defendant no. 3 did not provide the
addresses of the legal heirs of the defendant no. 2.
4. It is submitted by plaintiff that defendant no. 3 in his reply
alleged that the defendant no. 2 has knowledge that the defendant
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no. 2 has expired on 20.08.2014. The aforesaid allegations are
false because defendant no. 3 issued letter to the earlier advocate
to whom the plaintiff has changed in the August 2010 and after
18.08.2010 plaintiffs are being represented by present advocate.
Therefore, the plaintiff issued letter dated 09.02.2017 to the
defendant no. 3 denying the fact of knowledge about the death of
the defendant no. 2. Thereafter, time to time, matter was listed
before the Court, but defendant no. 3 did not informed the address
of the legal heirs of defendant no. 2.
5. It is further submitted by plaintiff that during pendency of
Notice of Motion No. 3286 of 2016, the defendant no. 3 filed
application dated 13.11.2018 alongwith certain documents. The
said documents consisting of one letter dated 08.11.2018
addressed by Mahesh Arjun Das Dua to Vivekanand CHS Ltd. & to
the defendant no. 3, informing that he is surviving the legal heir of
defendant no. 1 and nothing can be done without due notice to
him in respect of suit flat. It is contended by the plaintiff that the
defendant no. 3 did not receive the aforesaid notice. On the basis
of aforesaid letter, on 13.12.2018, the plaintiff tried to serve the
letter to the Mahesh Arjun Das Dua on his address mentioned in
the letter dated 08.11.2018. On the said address, Rohit Arjun Das
Dua refused to accept the said letter. Thereafter, the plaintiff’s
advocate address two letters dated 18.01.2019 to Rohit Arjun Das
Dua and Mahesh Arjun Das Dua informing that they had admitted
that they were legal heirs of defendant no. 1 and 2. They are
impleading them as party defendant in the present suit as legal
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heirs of defendant no. 2. Thereafter, the Notice of Motion No.
3286 of 2016 was listed on 29.01.2019. On that day, one of the
legal heir of deceased defendant no. 1 and 2 i.e. Rohit Arjun Das
Dua appeared in the Court alongwith his advocate and admitted
that he and his brother Mahesh Arjun Das Dua are the legal heirs
of defendant no. 1 and 2. As the legal heirs of defendant no. 1 and
2 were known and therefore, the Notice of Motion No. 3286 of
2016 become infructuous. Therefore, the aforesaid Notice of
Motion was disposed off by the Court with the specific direction to
plaintiff to take appropriate steps for setting aside abatement and
for bringing legal heirs of defendant no. 1 and 2. It is contended
by the plaintiff that therefore, he has filed present Notice of
Motion for bringing legal heirs of defendant no. 1 and 2 by setting
aside abatement.
6. It is further contended by the plaintiff that there is no
intentional delay on their part to bring legal heirs of defendant no.
1 and 2 on record. The knowledge of death of defendant no. 2 to
their notice was only around in July 2015. However, defendant
no. 3 did not inform about legal heirs of the defendant no. 2. The
plaintiff got the knowledge of the legal heirs only when the
defendant no. 3 filed application dated 13.11.2018 alongwith
certain documents. It is thus, contended by the plaintiff that right
to sue survive against the legal heirs of the defendant no. 1 and 2.
If the Notice of Motion is not allowed, they would suffer
irreparable loss. It is further contended by the plaintiff that lenient
view may be taken for considering the present application.
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7. The present Notice of Motion is opposed by the defendants.
It is contended by the defendants that plaintiff failed to assign
sufficient reasons to condone the delay. There is negligency on
the part of plaintiff to file present Notice of Motion. Hence, they
prayed for dismissal of the Notice of Motion.
8. Heard both the sides. Perused Notice of Motion and also
Roznama. It appears that after allowing the Chamber Summons
No. 1664 of 2010 for substituting the defendant no. 2 in place of
defendant no. 1 non appeared for the defendant no. 2. The
defendant no. 2 initially was represented by the advocate. In view,
of Order 22 Rule 4A of C.P.C., it is the duty of the advocate who is
appearing for the parties shall informed about the factum of death
of his client as well as to inform the legal representatives of the
deceased.
9. In the present case the advocate representing deceased
defendant no. 2 failed to inform the aforesaid fact. The plaintiff
pleaded that they get knowledge of the fact of death of defendant
no. 2 only in the month of July 2015. The Roznama dated
10.08.2015 further shows that the plaintiff informed to the Court
that the defendant no. 2 has expired but he is not aware when he
died. Thus, the reasons assigned by the plaintiff appears to be
genuine. Further, in view, of the Order 22 Rule 4A of C.P.C., the
advocate of defendant no. 2 did not inform to the plaintiff about
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the legal heirs of defendant no. 2. Therefore, it is not expected
from the plaintiff to take steps for bringing legal heirs of deceased
in the absence of knowledge of legal heirs.
10. Moreover, looking to the nature of dispute, it appears that
the plaintiff filed suit for specific performance of agreement dated
04.05.2018, which was executed between them and defendant no.
1. Therefore, in my view, the right to sue survive against the legal
representative of the deceased defendant no. 1 and 2. Therefore,
in my view, the legal representatives of defendant no. 1 and 2 are
necessary party to settle all dispute involved in the present suit. It
is well settled law that in order to bring Legal representative of
deceased, the Court should take liberal view to bring the legal
heirs of the deceased on record. (2017 SCC page no. 700 in case
of Pankajbhai Rameshbhai Zalavadia V/s. Jethbabhai Kalabhai
Zalavadia) Thus, in view of the above discussion, in my view, the
Notice of Motion needs to be allowed. From the pleadings of the
plaintiff, it appears that on 29.01.2019 the Notice of Motion No.
3286 of 2016 came to be disposed off. On that the plaintiff ought
to have taken immediate steps to file present Notice of Motion but
record shows that the plaintiff tendered Notice of Motion on
14.08.2019. Thus, after passing of order on Notice of Motion 3286
of 2016, it appears that there is a delay on account of plaintiff
which is remained unexplained. In my view, without taking the
hyper technical view, the inconveniency caused and delay caused
by the plaintiff can be condoned by awarding reasonable cost.
Thus, I proceed to pass the following order :
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ORDER
1. Notice of Motion No. 3213 of 2019 is hereby made absolute
in term of prayer clause (a),(b),(c) and (d) subject to
payment of cost of Rs. 2,000/ to the proposed legal heirs of
defendant no. 1 and 2 by the plaintiff.
2. Plaintiff to carry out necessary amendment within 14 days
from the date of order.
3. Plaintiff to bear cost of Notice of Motion.
4. Notice of Motion No. 3213 of 2019 is disposed off
accordingly.
(A.H.Laddhad)
Judge,
City Civil and Sessions Court,
Dated : 21.01.2020 Greater Bombay.
Dictated on : 21.01.2020
Typed on : 21.01.2020
Draft Submitted on : 27.01.2020
Checked on : 03.02.2020
Signed on : 03.02.2020
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
05/02/2020 at 11.00 a.m. (Ms. V.V.Sawant)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
no.)
Shri A.H.LADDHAD
(C.R. No.7)
Date of Pronouncement of
JUDGMENT/ ORDER
21/01/2020
JUDGMENT/ORDER signed by P.O.
on
03/02/2020
JUDGMENT/ORDER uploaded on 05/02/2020
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