Final Order 1

Order Details: Chamber summons
Pdf Text: 1 C.S.No.1871 of 2019
CNR:MHCC01-010597-2019
IN THE BOMBAY CITY CIVIL C0URT AT BOMBAY
CHAMBER SUMMONS NO.1871 OF 2019
IN
L.C. SUIT NO.1367 OF 2012
Mr. Mohammed Afzal S/o. Noor
Mohammed Patni .. Plaintiff
V/s.
1. The Municipal Corporation of
Greater Mumbai & Ors. .. Defendants
And
1 Fatima Akhtar Hussain Patni & Ors. Respondents/
.. Prop Def. No.3(a) to 3(d)
Appearance:-
Adv. Ramesh Singh for plaintiff.
Adv. Khairnar h/f Adv. Madkaikar for defendant No.4.
Adv. Rawade h/f Adv. Ms. Vyavahare for MCGM/defendant No.1
CORAM : HIS HONOUR ADDL. SESSIONS
JUDGE
SHRI. R. M. MISHRA
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.05).
DATE : 06/09/2023.
ORDER
This Chamber Summons is taken out by the plaintiff for
-- 1 of 5 --
2 C.S.No.1871 of 2019
bringing legal heirs of the deceased defendant No.3 by way of
amendment and for condonation of delay in applying for bringing legal
heirs on record.
2 On the other hand, the defendant No.1/MCGM and learned
advocate for the defendant No.4 resisted the Chamber Summons on the
ground that after the death of the defendant No.3, this Chamber
Summons is taken out after lapse of one year and no sufficient reasons
are given for delay in filing the Chamber Summons.
3 After considering the submissions of both the sides, it
reveals that the contention of the plaintiff is that the learned advocate
for the defendant No.3 was requested to furnish copy of death
certificate and the names of the legal heirs of deceased defendant No.3,
but no any such information or document was furnished. In the
meantime, the plaintiff sustained fracture injury on his leg due to which
delay caused in taking out the Chamber Summons.
4 After considering the submissions of both sides, there
cannot be any doubt that there is inordinate delay on the part of the
plaintiff in apply for bringing the legal heirs of the deceased defendant
No.3 on record. Perusal of the roznama of this case indicates that since
07/01/2019, the plaintiff was seeking time for taking steps. Thereafter,
by an order dt.16/09/2019, Notice of Motion No.1630 of 2012 taken
out by the plaintiff came to be dismissed by the Court by observing that
the matter is old one and there is delay on the part of the plaintiff to
proceed further in this case.
-- 2 of 5 --
3 C.S.No.1871 of 2019
5 While considering the aspect of negligence on the part of
the plaintiff, it is equally important to note that the plaintiff has also
filed copies of medical treatment of Government Hospital to show that
since 18/07/2019, the plaintiff was taking medical treatment towards
injury on his foot. Medical examination documents pertaining to
18/07/2019 till 29/07/2019 shows that the plaintiff was taking medical
treatment for the injury on his foot. Therefore, considering these
circumstances, I am of the view that it is just and necessary to grant
opportunity to the plaintiff for deciding the suit on merit. The suit is
filed against several defendants. Therefore, even if the suit is abated
against the defendant No.3, at this juncture, it is quite difficult to
ascertain that the right to sue is entirely not survived. Apart MCGM,
learned advocate for the defendant No.4 orally resisted the Notice of
Motion on the ground that delay on the part of the plaintiff is causing
hardship to the defendant No.4. Therefore, considering these
circumstances, it would be just and proper to compensate the defendant
No.4 by awarding reasonable cost while granting opportunity to the
plaintiff to bring legal heirs of the deceased defendant No.4 on record.
Therefore, following order is passed.
ORDER
1 Chamber Summons No.1871 of 2019 is allowed in terms of
prayer clause(a) subject to cost of Rs.3,000/- which shall be paid to the
defendant No.4 though his advocate.
2 The plaintiff is allowed to bring LRs. of deceased defendant
No.3, as prayed and thereby delay in applying for bringing the LRs. is
condoned and abatement, if any, is hereby set aside.
-- 3 of 5 --
4 C.S.No.1871 of 2019
3 The plaintiff is directed to pay the cost to the advocate for
the defendant No.4 and to comply the order within 14 days from the
date of this order.
4 Chamber Summons No.1871 of 2019 is disposed off
accordingly.
Date:06/09/2023. (R. M. Mishra )
Judge, City Civil Court,
Dictated on :06/09/2023. Gr.Mumbai.
Typed on :06/09/2023.
Signed on :06/09/2023.
-- 4 of 5 --
5 C.S.No.1871 of 2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
06/09/2023 05.23 p.m. (Santosh B. Sawant )
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
No.)
HHJ Shri. R. M. Mishra
(C.R.No.05)
Date of Pronouncement of
JUDGMENT/ORDER
06/09/2023.
JUDGMENT/ORDER signed by P.O.on 06/09/2023.
JUDGMENT/ORDER uploaded on 06/09/2023.
-- 5 of 5 --