Final Order 1

Order Details: Notice of Motion
Pdf Text: ..1.. NM NO. 3371/2019
MHCC010092292019
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 3371/2019
IN
S.C. SUIT NO.8780 OF 1998
Niru Dinesh Chhabria. ….Plaintiff
Versus
Payal Gupta @ Shokey d/o
Lakhpatram Agarwal and others. .... Defendants.
Advocates
Ms. Jyotsna Vyas for the plaintiff.
Advocate for defendant absent.
CORAM : HIS HONOUR JUDGE
Sunil T. Soor.
(COURT No.: 2)
DATED : 15th December, 2020
ORAL ORDER
Plaintiff taken out this notice of motion for condonation
of delay in filing chambers summons for bringing legal heirs of
defendant no.1 on the record. Perused the notice of motion alongwith
documents, affidavit and written arguments of advocate for defendant
no.1 (deceased). Heard advocate for plaintiff. Advocate for defendant
absent.
2. From the perusal of record, it appears that plaintiff taken
out chamber summons no.961/2018 for bringing legal heirs of
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defendant no.1 on the record as per schedule attached to said chamber
summons. Defendant no.1 is expired on 04.05.2017.
3. Contention of plaintiff is that advocate for plaintiff came
to know on 08.08.2017 that defendant no.1 is expired. Advocate for
defendant no.1(deceased) appeared on 24.10.2017 before the Court.
On 23.11.2017, matter was before the Court Receiver. Advocate for
defendant no.1 was directed to submit name and address of legal heirs
of defendant no.1 by 30.11.2017 in the office of Court receiver and also
to supply the copy of it to advocate for the plaintiff. After receiving
name and address of legal heirs of defendant no.1, affidavit in support
of chamber summons to bring legal heirs of defendant no.1 was
prepared and affirmed on 01.03.2018. Court was not sitting on
03.03.2018. Hence, chamber summons could not be filed and matter
was adjourned to 10.04.2018. On the same day, copy of chamber
summons was served on advocate for defendant no.1 and matter was
adjourned for reply and chamber summons made returnable to
15.06.2018. On repeated request, advocate for defendant no.1 gave
name and address of the legal heirs of defendant no.1 vide letter dated
31.01.2018 by post. Thus there is delay to file chamber summons in
bringing legal heirs of defendant no.1 on record. Hence plaintiff filed
the present notice of motion for condonation of delay in filing chamber
summons no.961/2018 for bringing legal heirs of defendant no.1 on
record.
4. It appears that defendant no.1 is expired on 04.05.2017.
Suit is for declaration of ownership of plaintiff in respect of flat A-18
and B-45 situated at Vallard View, 9th floor, Haji Ali Corner, Tardeo
Road, Mumbai 400 034 and for permanent injunction. Considering
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nature of suit, cause of action survives to legal heirs of defendant no.1
and 2. Advocate for defendant no.1 informed to advocate for plaintiff
vide his letter dated 30.01.2018 by post about name and address of
legal heirs of defendant no.1. Chamber summons no.961/2018 is
affirmed on 01.03.2018. On 01.03.2018, Court was vacant. Reasons
mentioned in the present notice of motion for condoning delay in filing
chamber summons no. 961/2018 for bringing legal heirs of defendant
no.1 on record is convincing and reasonable. So also, considering
nature of suit, no prejudice would cause to defendants. Under the facts
and circumstances, present notice of motion is liable to be allowed. In
the result, following order.
ORDER
1. Notice of motion no.3371/2019 is allowed and made absolute in
terms of prayer clause (a).
2. Delay in filing chamber summons no.961/2018 for bringing
legal heirs of defendant no.1 is condoned.
3. Notice of motion no. 3371/2019 is disposed of.
(Sunil T. Soor)
Judge
Date : 15.12.2020 Gr. Mumbai.
Typed on : 15.12.2020
HHJ signed on : 15.12.2020
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
DATED 15.12.2020, 5.30 p.m.
UPLOAD DATE AND TIME Mrs. V. N. Rajgole.
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. S. T. Soor
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
15.12.2020
JUDGMENT/ORDER signed by P.O.
on
15.12.2020
JUDGMENT/ORDER uploaded on 15.12.2020
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