Order 1

Order Details: Chamber summons
Pdf Text: .1. CH/S No.1910/2019 in
L.C. Suit No. 1827/2009.
MHCC010108132019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
CHAMBER SUMMONS NO. 1910 OF 2019.
IN
L.C. SUIT NO. 1827 OF 2009.
Smt. Mehmooda Khatoon Wd/o. Haji
Mohd. Islam. …......................………………….. … PLAINTIFF.
V/s.
M.C.G.M. ....……………………………….…….. …. DEFENDANT.
Smt. Rashida W/o. Mohd. Rafique Khan……….. .... APPLICANT.
CORAM : A.G. Santani.
(Court Room No.11).
DATED : 12th May, 2022.
APPEARANCES :
Mr. Asit Singh, Ld. Advocate for the Plaintiff.
Mr. Sunil C. Khandagale, the Ld. Advocate for the Defendant/MCGM.
01. The applicant has taken out this Chamber Summons (for
brevity ‘Ch/s’.) for carrying out the amendment as per the Schedule and
for her substitution as legal representative of the late plaintiff. Perused
the Ch/s., her accompanying affidavit, say of the defendant, the initial
Order dtd. 12.12.2019 of this Ch/s. and the record. Heard both sides.
02. Considering the record, the points for determination, along
- with my findings and the reasons therefor, are as under :
Sr. No. POINTS FINDINGS
(i). Whether the applicant is entitled for
the amendment and her substitution in
the suit as “the legal representative” of
the late plaintiff ?.......…….................... .....No.
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.2. CH/S No.1910/2019 in
L.C. Suit No. 1827/2009.
(ii). What Order ? .............…....................... …. As per final Order.
REASONS FOR THE FINDINGS
AS TO POINT NO.1 :
03. By filing this Ch/s., the applicant came with a specific case
that the original plaintiff was her mother and she died on 25.07.2019 at
Mumbai. In support of this Ch/s., she enclosed her death certificate. She
submitted that even after her demise, right to sue survived in her favour
and therefore, as her legal heir, her name may be taken on the record.
The defendant objected this Ch/s. as the applicant did not produce any
document to show that she is a legal heir of the late plaintiff. Initially,
considering the rival submissions, as per the Order dtd. 12.12.2019, the
Ld. predecessor of this Court called upon the applicant to file her own
affidavit along-with that of neighbours from local vicinity and certificate
from Local Officer. It was observed to be advisable to obtain Succession
Certificate. In response thereto, recently, he filed affidavits of one Nisar
Ahmed Shakeel Khan and Abdul Kalam Khan. They posed themselves as
relatives of the late plaintiff and this applicant and cousin brother of the
applicant.
04. Here, it is notable that by filing this suit, the late plaintiff
prayed for the relief of declaration that the suit notice dtd. 12.01.2009,
issued U/s. 351 of the M.M.C. Act,1888, and the Order dtd. 07.08.2009
are bad in law. She also asked for the perpetual injunction, restraining
the defendant to act upon the same. This Ch/s. goes to reveal that she
died on 25.07.2019. To support this Ch/s., the applicant also filed copy
of her Ration Card and Aadhar Card as per the list Exhibit-19. However,
after going through copy of this Ration Card, it reveals her name as the
daughter-in-law of the late plaintiff and the name of one Mohd. Rafiq as
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.3. CH/S No.1910/2019 in
L.C. Suit No. 1827/2009.
her son. The fact remained that contrary to this record, in this Ch/s., the
applicant presented the late plaintiff as her mother. Simultaneously, the
record is silent about whereabouts of the said Mohd. Rafiq - son of late
plaintiff and any explanation as regards his absence from this suit. True
that now, the applicant filed above said affidavits, as compliance of the
earlier directions on this Ch/s.. On going through the said affidavits,
which are more or less identical in nature, it seems that even this time,
there is noting on record to infer the alleged relations of deponents with
the applicant and late plaintiff. Moreover, the applicant did not worry to
obtain the required certificate from local Officer or succession certificate
as was observed and advised in the earlier Order. In the circumstances,
apparently, the applicant seems to have deposed contrary to contents of
the Ration Card and also failed to comply with the earlier directions in
its spirit. Consequently, this Court is of the view that at this stage, there
is nothing on record to assume her status as “the legal representative” of
the late plaintiff, as is defined U/sec. 2 (11) of the CPC, 1908. Even, she
did not come before this Court with disclosure of all the true facts about
the other legal representatives/ heirs of the late plaintiff. Consequently,
I answered point No.1 in the negative and to answer point No. 2, I pass
the following Order :
-: O R D E R :-
(i). Chamber Summons No.1910/2019 stands dismissed.
(ii). Chamber Summons No.1910/2019 is disposed off.
{A.G. Santani}
Mumbai. Ad-ho Judge,
Dated : 12.05.2022. City Civil Court, Mumbai.
Dictated on : 12.05.2022.
Typed on : 12.05.2022.
Signed on : 12.05.2022.
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.4. CH/S No.1910/2019 in
L.C. Suit No. 1827/2009.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
13.05.2022 at 1.30 pm. Mrs. S.R.Mejari
Name of the Judge (with Court Room no.) HHJ Shri A.G.Santani
(Court Room No.11).
Date of Pronouncement of Judgment/Order
Judgment/Order signed by P.O. on
Judgment/Order uploaded on
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