Final Order 1

Order Details: Other
Pdf Text: CS No.1267/19 & MA No.87/2019 ..1.. Suit No.9480/87
CNR No.MHCC010070702019
CNR No.MHCC010094072019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
CHAMBER SUMMONS NO.1267 OF 2019
ALONG WITH
MISCELLANEOUS APPLICATION NO.87 OF 2019
IN
SUIT NO.9840 OF 1987
Vasant A. Patel and others .. Plaintiffs
Versus
Kapadia Development Cooperative
Housing Society Ltd and another .. Defendants
And
Vasant A. Patel and others .. Applicants
Mr. Madkaikar, advocate for applicants/plaintiffs
Ms. Tanya Sanghavi, advocate for defendant No.2
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 16th January, 2020
COMMON ORDER
Present chamber summons is taken out by the applicants for
carrying out amendment as per schedule annexed to it. Applicants have
also taken out miscellaneous application for condonation of delay
caused in taking out chamber summons.
2. It is the contention of applicants that original plaintiff No.3
Mansukhbhai J. Kothari died on 2nd February, 2017 and his son namely
Chetan Mansukhbhai Kothari has been inducted as partner in his place
in the firm M/s. Guruprerna Corporation. Therefore, it is just and
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necessary to bring on record name of Chetan Kothari as plaintiff
No.3(a) in place of original plaintiff No.3 Mansukhbhai Kothari. Right
to sue survives against rest of plaintiffs and also legal representative of
original plaintiff No.3. In view of amendment as sought above it is
necessary to make consequential amendment in the plaint by
substituting the words 'Plaintiff Nos.1, 2, 3(a), 4 and 5 by deleting the
words plaintiff Nos.1 to 5 wherever appearing in the plaint.
3. It is further contended that registered office of plaintiffs has
been shifted to Borivali (East), Mumbai with effect from 4th December,
2017 which is reflected in the certificate issued by Registrar of Firms.
Therefore, it is necessary to delete the address appearing in the title of
the plaint and vakalatnama and same be substituted as A205, Western
EdgeII, Off. Western Express Highway, Behind Metro Mall, Borivali
(East), Mumbai – 400 066.
4. It is further contended that plaintiffs are claiming right of way
from the land which now has been allotted CTS No.109/1F and prayed
for addition of said new number as per the clauses V to VII of schedule
annexed to chamber summons. Accordingly, they prayed to allow
chamber summons.
5. In miscellaneous application plaintiffs have contended that
plaintiff No.3 died on 02.02.2017 i.e. after the suit has been disposed
off on 16.06.2015. That exparte judgment and decree was set aside on
01.07.2017. It is contended that delay has been caused due to
pendency of various interlocutory proceedings and applications filed in
the Suit No.9840 of 1987. Accordingly, they prayed to condone the
delay caused in taking out chamber summons for bringing legal
representative of deceased plaintiff No.3.
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6. Defendant No.2 only filed reply to chamber summons on
chamber summons itself. They leave it to discretion of this Court.
7. Miscellaneous application and chamber summons proceeded
without reply against defendant No.1.
8. Perused chamber summons, affidavit in support of it, reply of
defendant No.2, miscellaneous application. Heard learned advocate for
applicants and learned advocate for defendant No.2. Learned advocate
for defendant No.1 remained absent at the time of hearing.
9. Learned advocate for applicants has placed reliance upon the
authority in the case of Ram Nath Sao alias Ram Nath Sahu and
others Vs. Gobardhan Sao and others AIR 2002 Supreme Court
1201 in support of his submission. In that case it is held that “The
expression sufficient cause within the meaning of section 5 of the
Limitation Act or Order 22 Rule 9 of the Code or any other similar
provision should receive a liberal construction so as to advance
substantial justice when no negligence or inaction or want of bona fide
is imputable to a party.” In view of this legal position, I consider
present chamber summons and miscellaneous application.
10. From copy of death certificate of plaintiff No.3 it is clear that he
died on 02.02.2017. It is apparent that present suit was earlier decreed
vide judgment and decree dated 16.06.2015 passed by my learned
predecessor. Said judgment and decree was set aside vide order
01.07.2017 passed by my learned predecessor in Notice of Motion
No.950 of 2016. Thus, it is clear that plaintiff No.3 Mansukhbhai
Kothari died after the disposal of the suit and during the pendency of
Notice of Motion No.950 of 2016. It is also apparent that there were
different proceedings taken out subsequently in form of chamber
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summons or notice of motions. So, possibility cannot be ruled out that
rest of plaintiffs were being engaged in those interim applications
forgotten to bring on record name of legal representative of original
plaintiff No.3. In the facts of matter and relying on authority cited
supra, in order to do substantial justice, I am inclined to take liberal
approach and condone the delay caused in taking out chamber
summons.
11. So far as chamber summons is concerned different amendments
have been sought as per schedule. As per clause I, applicants/plaintiffs
have sought to bring on record name of legal representative of original
plaintiff No.3 in his place. As plaintiff No.3 died so it is necessary to
bring his legal representative on record. Therefore, said amendment in
cause title of plaint is necessary.
12. Plaintiffs have sought substitution of new address of their
registered office as per clause II as same has been shifted to said new
address. In my view proposed amendment is of formal nature and no
prejudice will be caused to defendants if same is allowed. Therefore, I
am inclined to allow said amendment.
13. So far as amendments as per clauses III and IV are concerned;
same are consequential to bringing on record name of legal
representative of plaintiff No.3 on record. Therefore, same are
necessary and I am inclined to allow the same.
14. So far as amendments as per clauses V to VII are concerned;
they relate to addition of new CTS Number 109/9F pertaining to suit
property in the different paragraphs in the plaint. Those amendments
are of formal nature and relate to description of new CTS number of
suit property. Same do not change nature of pleadings. Therefore, I am
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inclined to allow the same.
Amendments as sought are essential and necessary. Therefore, I
am inclined to allow chamber summons and so also miscellaneous
application for condoning the delay caused in taking out chamber
summons. However certain costs is to be imposed considering the fact
that chamber summons is not taken out promptly. Hence, pass
following order:
ORDER
1. Miscellaneous Application No.87 of 2019 and Chamber
Summons No.1267 of 2019 are allowed and made absolute in
terms of prayer clause (a) subject to deposit of costs of
Rs.1000/ (Rupees One Thousand only) with DLSA, Mumbai
within period of two weeks from the date of this order.
2. On deposit of costs, applicants/plaintiffs have to carry out
amendment as per schedule annexed to chamber summons.
3. After carrying out amendment, copy of amended plaint be
served upon defendants and copy of same be placed on record.
4. Accordingly, Miscellaneous Application and Chamber Summons
are disposed off.
(M. T. Asim)
Judge
Date : 16.01.2020 Gr. Bombay
Typed on : 16.01.2020
HHJ signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
17.01.2020
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
16.01.2020
JUDGMENT/ORDER signed by P.O.
on
17.01.2020
JUDGMENT/ORDER uploaded on 17.01.2020
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