Final Order 1

Order Details: Notice of Motion
Pdf Text: 1
IN THE COURT OF CITY CIVIL COURT AT
GR.BOMBAY
NOTICE OF MOTION NO.3924 OF 2019
CNR NO.MH-CCO0110801-2019
IN
S.C. SUIT NO.9085 OF 1992
Gulu G.Lalwani ..Plaintif
Versus
1(a)Prem Lachhmandas Jumani
and others ..Defendants
Ld. advocate Ms.Nichani for plaintif
Ld. advocate Ms.Dhivya Tygagi for defendants
CORAM: HIS HONOUR JUDGE
SHRI M.SALMAN AZMI
DATE: 06/02/2020
ORAL ORDER
1. This notice of motion is tendered by the
plaintif for exemption under order 22 rule
4(4) of Civil Procedure Code from the
necessity of substituting remaining legal
representatives of the original defendant as
well as heirs of defendant nos.1(b) and 1(c)
and judgment be pronounced against the said
defendant notwithstanding the death of such
defendant.
2. Heard.
2
-- 1 of 8 --
2
3. It is the contention of the plaintif that one
Mr.B.S.Chadani, advocate fled vakalatnama
on behalf of the defendant on 4th July 1994.
Also one Rajendra Bhagalljee fled appearance
on behalf of defendant. The advocate for
defendant Mr.Udayshankar waived service of
writ of summons on behalf of defendant-
Jankibai on 05/11/1997. On 28/01/1998, no
written statement was fled by the defendant
and the matter was transferred to the list of
undefended suit. Jankibai expired on
15/02/2003. A chamber summons bearing
no.1624 of 2008 was taken out for bringing on
record the heirs of Jankibai and defendant
nos.1(a) to 1(f) were brought on record. On
20/12/2010, one M/s. Khaitan & Jaykar
appeared on behalf of defendant no.1(d).
Another vakalatnama was fled by same
advocate on 07/01/2011 on behalf of
defendant nos.1(a) and defendant no.1(c). On
18/12/2010, M/s.Khaitan & Jaykar, advocate
addressed a letter to the advocate for plaintif
that defendant no.1(b)-Mona @ Asha
Ghanshyam Bijlani expired on 05/09/2009. He
also informed that defendant no.1(c)-Deepa
Jumani is a widow of one Nandkumar Jumani.
It was also disclosed that Nandkumar expired
3
-- 2 of 8 --
3
in 1993 and was survived by defendant
no.1(c), one Mrs.Sheetal Lobo(married
daughter) and Suraj Jumani(son). The
advocate has misplaced the said letter. The
matter was transferred to this Court. On
02/02/2013, an order for ex-parte hearing was
passed and the matter was adjourned. On
12/11/2013, order came to be passed
proceeding without written statement of
defendant nos.1(a),1(c),1(d) and 1(f). The
plaintif submitted that plaintif has taken out
chamber summons bearing no.1745 of 2014
praying therein for disclosure of the names
and addresses of defendant no.1(b) as well as
furnishing addresses of defendant no.1(f) was
returned back to the Sheriffs ofce with a
remark fleftf. The said chamber summons
came to be dismissed. Defendant nos.1(a),
1(c) to 1(f) fled notice of motion bearing
no.2756 of 2015 praying for condonation of
delay and for fling written statement and the
same was allowed and written statement
came to be fled on 23/02/2013. The plaintif
has taken out chamber summons for bringing
Lrs of defendant no.1(a) bearing no.704 of
2018. The contention of plaintif is that
plaintif has not joined Nandkumar Jumani in
4
-- 3 of 8 --
4
the suit as he was not aware of his existence
till the said fact of his being an heir of Jankibai
was brought to his notice in 2016. The
plaintif submitted that upon the death of
Jankibai and in view of non-fling of written
statement by Jankibai and defendant nos.1(b)
and 1(c), plaintif be exempted under order 22
Rule 4(4) of Civil Procedure Code from the
necessity of substituting legal representatives
of the said original defendant as well as heirs
of defendant no.1(b).
4. Defendant nos.1(a)[i to iii], 1(d) and 1(f)
opposed the notice of motion. It is their
contention that plaintif has conveniently not
placed on record the events that have
transpired during the pendency of the suit and
the present notice of motion is only to mislead
the Court. It is the contention of the
defendants that Jankibai passed away on
15/02/2003. Her heirs were brought on record
after fve years. Thereafter defendant nos.1(a)
to (f) were brought on record. The plaintif
was informed by the advocate of these
defendants about the demise of defendant
no.1(b) in advance and had furnished the
information available with them but plaintif
did not take any steps in that regard. During
5
-- 4 of 8 --
5
the pendency of the suit, defendant no.1(c)
passed away and the plaintif was informed
about the same. The plaintif has fled
chamber summons no.1745 of 2014 seeking
direction from the Court that the surviving
defendants disclose the details of the legal
heirs of defendant no.1(b). The same was
dismissed. The plaintif fled another chamber
summons bearing no.2040 of 2016 seeking
disclosure of the legal heirs of defendant
no.1(b) alongwith legal heirs of defendant
no.1(c) from the surviving legal heirs. The
same was also dismissed on 25/10/2017.
Defendant no.1(e) passed away on
18/02/2017 and defendant no.1(a) passed
away on 05/01/2018. The plaintif has
brought on record legal heirs of defendant
no.1(a). It is the contention the defendants
that suit against defendant no.1(b), 1(c) and
1(e) is abated. The matter is for fnal
arguments and prayed for dismissal of the
notice of motion.
5. At the outset it is necessary to refer order 22
rule 4(4) of the Civil Procedure Code and the
same is reproduced hereinbelow:-
“The Court whenever it thinks ft, may exempt
the plaintif from the necessity of substituting
6
-- 5 of 8 --
6
the legal representatives of any such
defendant who has failed to fle a written
statement or who, having fled it, has failed to
appeared and contest the suit at the hearing
and judgment, may, in such case, be
pronounced against the said defendant
norwithstanding the death of such defendant
and shall have the same force and efect as if
it has been pronounced before death took
place.”
6. The sub rule 4 does not create any bar for
invoking it even in a case abatement has
taken place. The language of sub rule 4 is
clearely worded as ‘whenever it thinks ftf
and therefore these words have widest
amplitude. They do not envisages time limit
and there is no warrant for time limit in the
application of sub rule (4) for sequence the
sub rule occurs. The Civil Procedure Code
provides for abatement of the suit, but Code
itself provides further abatement could be set
aside on the application made by the plaintif.
Therefore it would not be possible nor proper
to give fnality to the deemed abatement and
take away the efect of wide words used in
sub-rule 4.
7
-- 6 of 8 --
7
7. The argument of Ld. Counsel for the
defendants is that defendants have provided
information about the legal heirs of defendant
no.1(b), despite that the plaintif has not
taken any eforts.
8. On perusal of the record, it appears that the
original defendant Jankibai has not fled the
written statement. Defendant no.1(b), 1(c)
and 1(e) are the Lrs of Jankibai. They have
not fled their written statement. Hence, the
plaintif as per order 22 rule 4(4) has made
out the case for exemption for bringing the Lrs
of defendant no.1(b) and 1(c). Hence, it is
expedient to pass following order:-
ORDER
1. N/M No.3924/2019 is made absolute in
terms of prayer clause (a) and thereby
the plaintif is exempted under Order 22
Rule 4 (4) of the Code of Civil Procedure
from substituting the legal
representatives of original defendant
Jankibai Lachmandas Jumani as well as
the legal representatives of defendant
no.1(b) Mrs. Mona @ Asha Ghanshyam
Bijlani and defendant no.1(c) Mrs. Deepa
Nandkumar Jumani.
2. Cost in the cause.
8
-- 7 of 8 --
8
3. N/M No.3924/2019 is disposed of
accordingly.
06/02/2020 M.SALMAN AZMI
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on: 06/02/2020
transcribed on: 15/02/2020
Signed on: 17/02/2020
'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
18/02/2020 at 4.00 pm.
MRS.T.C.KAMBLE
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of judgment/
order
06/02/2020
Judgment and order signed by P.O. 17/02/2020
Judgment/order uploaded on 18/02/2020
-- 8 of 8 --