Final Order 1

Order Details: Chamber summons
Pdf Text: MHCC010090432019
CNR NO. MHCC010090432019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO.1601 OF 2019
IN
SUIT NO.4805 OF 2007
(HIGH COURT SUIT NO.958 OF 2007)
Terance Rosonavier D’Cruz ] … Plaintiff
V/s.
1. Annie Peter Gomes alias Annie ]
Bastyav D’lima ]
2. Mores Peter Gomes ] ....Defendants
Appearances :-
Ld. Adv. Mr. Santosh S. Jagtap for plaintiff.
None for defendant.
CORAM : HIS HONOUR JUDGE
SMT. R.K. KSHIRSAGAR
(C.R.No.13)
DATED : 20th October, 2021
ORAL ORDER
1. The present Chamber Summons is taken out by the plaintiff
to delete the name of deceased defendant No.1 and to condone the
delay of 2793 days in taking out the present Chamber Summons.
2. It was submitted that the plaintiff filed present suit before
the Hon’ble High Court. On 02.11.2007 the defendant Nos.1 and 2
-- 1 of 4 --
- 2 - CH-S 1601/2019 in Suit 4805/2007
were served, as they failed to appear, suit was preceeded Ex-parte
against them. In the year 2012 due to enhancement in pecuniary
jurisidction the present matter came to be transferred to this Court. The
notices were issued to all the parties on the Court Motion but the
defendants failed to appear. Pending the hearing of suit, the defendant
No.1 died on 13.10.2010. However, the plaintiff was unaware about
the said fact. The plaintiff came to know about the same, he searched
about the legal heirs of defendant No.1. He came to know that
defendant No.2 is the only legal heir of defendant No.1. However, there
was delay in taking out the present Chamber Summons. The delay
was not deliberate. The defendant No.2 is already on record and only
the name of defendant No.1 is to be deleted and therefore the delay be
condoned and Chamber Summons be allowed.
3. The defendant No.2 was served with Chamber Summons
but he failed to file reply and therefore the Chamber Summons was
proceeded without reply.
4. Heard Learned Advocate for plaintiff. The perusal of record
shows that earlier the suit was filed before the Hon’ble High Court and
it was later on transferred to this Court. The defendant No.1 and 2
were proceeded Ex-parte. The defendants despite the knowledge of
pendency of the suit failed to appear. Even after the transfer of the suit
to this Court, Court Motion Notice was issued and served to defendants.
Admittedly, there is a considerable delay in filing the present Chamber
Summons. It however, appears that the plaintiff himself was unaware
about the death of defendant No.1. The defendants had choosen not to
appear before the Court and therefore there was no reason to bring into
the notice of the plaintiff about the death of defendant No.1. It seems
-- 2 of 4 --
- 3 - CH-S 1601/2019 in Suit 4805/2007
that the defendant No.2 is already on record. Defendant No.2 is the
surviving legal heir of deceased defendant No.1 and therefore, the suit
was not abated. The right to suit survives against the defendant No.2.
It appears that if the delay is not condoned the plaintiff will be put to
serious prejudice. No such harm would cause to defendant No.2 as only
the name of defendant No.1 is to be deleted. However, the plaintiff
should be liable to pay the cost to the legal services Authority. I
therefore, proceed to pass the following Order:
ORDER
1. The Chamber Summons no. 1601 of 2019 is allowed.
2. The delay in taking out the present chamber summons is condoned
subject to cost of Rs.5,000/- to be paid to the District Legal Services
Authority (DLSA), Mumbai within one month of this order.
3. After payment of cost plaintiff is at liberty to delete the name of
deceased Deft. No.1 and to carry out the amendment as proposed till
next date.
( Smt. R. K. Kshirsagar )
Judge, (C.R.No.13)
Dt.: 20-10-2021 City Civil Court, Gr. MUMBAI
Dictated on : 20-10-2021
Transcribed on : 21-10-2021
checked on : 21-10-2021
Signed on : 21-10-2021
( Smt. R. K. Kshirsagar )
Judge, (C.R.No.13)
City Civil Court, Gr. MUMBAI
-- 3 of 4 --
- 4 - CH-S 1601/2019 in Suit 4805/2007
ERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
22.10.2021 at 11.35 a.m.
UPLOAD DATE AND TIME
(VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge ( Smt. R. K. Kshirsagar )
Judge, (C.R.No.13)
Date of pronouncement of judgment/order 20.10.2021
Judgment/order signed by P.O. on 21.10.2021
Judgment/order uploaded on 22.10.2021
-- 4 of 4 --