Final Order 1

Order Details: Chamber summons
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IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO.1718 OF 2019
IN
S.C.SUIT NO.5900 OF 2005
HIGH COURT SUIT NO.454 OF 2005
Thakubai Mukund Mali ....Plaintiff
V/s
1. Gajanan Raghunath Mhatre & Ors. .....Defendants
And
1. Smt.Heera Gajanan Mhatre & Ors. ....Respondents
APPEARANCE:
Advocate A.J.Almeida for plaintiff.
Advocate Motiwala for defendant nos.1 to 10
Advocate Joshi for defendant no.14.
CORAM : H. H. ADHOC JUDGE
SHRI MILIND A. BHOSALE
(COURT ROOM NO. 32)
DATE : 19th November, 2019
ORDER
Perused Chamber Summons alongwith affidavit and written reply
tendered by defendant nos.1 to 10 & 14.
2. According to the Notice of Motion taken out by plaintiff that
defendant no.1 expired on 18/8/2019 leaving behind him respondent
nos.1 to 5 as the only heirs and legal representatives. It is further
submitted that right to sue is survived and therefore, it is necessary to
permit plaintiff to amend the title of plaint by deleting name of
defendant no.1 and substituting names of respondent as defendant
no.1(a) to 1(e) in place of defendant no.1.
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3. Defendant nos.1 to 10 tendered their written reply and registered
their no objection to the Chamber Summons.
4. The defendant no.14 tendered written reply and submitted that
to the order of Court.
5. I have heard Ld.Counsel for both sides. They are not disputing
death of defendant no.1 Gajanan Raghunath Mahatre. In support of
advocate for defendant nos.1 to 10 filed death certificate of defendant
no.1 Gajanan Raghunath Mahatre. So it is crystal clear that as
informed by the party defendant no.1 was died on 18/8/2019. After
demise as per O.XXII R.4 of CPC it was obligatory on the part of plaintiff
to brought legal representative of deceased defendant no.1 on record
within 90 days. Today is the 90th day and therefore, the plaintiff has
taken out Chamber Summons within a limitation. Furthermore, as per
record plaintiff has filed suit for declaration that he has one half share
in all the suit property. According to the case of plaintiff that the suit
property involved in the present matter is belonging to his father and
defendant nos.1 to 5 dispose of the property by obtaining thumb
impression of his mother and he is having one half share in the suit
property. As defendant nos.1 to 5 being heirs & legal representative of
Raghunath Mahatre and relations of Baburao with cordial relation with
defendant nos.1 to 5 and sons of his real brother, however, in the year
2004 mother of plaintiff learnt that some development activity started
at the place in old house and therefore, she filed suit against defendant
nos.1 and 2. As per the contention in the record it shows that the
plaintiff and defendant nos.1 to 5 are related to each other as relative
they have raised dispute in the court regarding suit property hence, they
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are involved in the dispute of suit property and after demise of
defendant no.1. I am of the opinion that right to sue survives and
therefore, it is necessary on the part of plaintiff to bring the legal
representative of deceased defendant no.1 on record. The present
Chamber Summons did not challenge by defendant no.14. Defendant
no.14 leaves the question of order on Court but I find merit in the
Chamber Summons and therefore, it is necessary to bring legal
representative defendant no.1 on record. Hence, I pass following order.
ORDER
1. Chamber Summons No.1718 of 2019 is made absolute in
terms of prayer clause(a).
2. Plaintiff to carry out amendment within 14 days.
3. Plaintiff is directed after amendment necessary steps shall be
taken for appearance of defendant nos.1(a) to 1(e).
Date:19/11/2019 (Milind A.Bhosale)
AdHoc Judge
City Civil & Sessions Court,
Gr.Bombay
Dictated on : 19/11/2019
Typed on :19/11/2019
H.H.J.Signed on :19/11/2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
19.11.2019 at 11.30 a.m. (Mrs.P.P.Khanvilkar)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room no.) SHRI M.A.BHOSALE
(C.R. NO.32)
Date of Pronouncement of JUDGMENT/
ORDER
19.11.2019
JUDGMENT/ORDER signed by P.O. on 19.11.2019
JUDGMENT/ORDER uploaded on 19.11.2019
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