Final Order 1

Order Details: Chamber summons
Pdf Text: 1 Ch/s 2004/2019 in Suit 92/1987
CHAMBER SUMMONS NO. 2004 OF 2019
IN
SUIT NO. 110092 OF 1987
(HIGH COURT SUIT NO. 2830 OF 1987)
CNR NO. : MHCC010113682019
Manju Sureshchandra Upadhyaya & Ors. … Plaintiffs
Versus
Charandas Jain & Ors. ...Defendants
Appearance:
Adv. Shri. K.D. Shah for Plaintiffs.
Adv. Shri. D.A. Barot for Defendant No. 5.
CORAM : SMT. S.S. NAGUR
JUDGE, (C.R.NO.4)
DATE : 23/10/2021
ORDER
The Chamber Summons is filed by the plaintiffs to appoint
the Administrator General or Officer of this Hon'ble Court under Order
22 Rule 4A of Code of Civil Procedure, to represent the estate of
deceased defendant no. 1, 3, 4, 7, 9 and 10.
2. The Chamber Summons is supported by Affidavit of Manju
Sureshchandra Upadhyaya, the plaintiff no. 1. The plaintiffs stated that
the plaintiffs are unable to get the names and addresses of the
deceased heirs of the defendants. The defendant no. 5 himself is the
legal heir of deceased defendants. He has not informed the plaintiffs
about the legal heirs of the deceased defendants. The plaintiffs are
unable to get the information of the addresses and names of the legal
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heirs. Therefore to appoint the Administrator General or some other
Officer of the Court and allow the Chamber Summons.
3. The defendant no. 5 filed reply through Affidavit of Subash Jain
and denied the contents of Chamber Summons. The defendant no. 5
has stated that the defendant no. 1 died on 06.11.1990 at Delhi,
defendant no. 3 died on 26.07.1988 at Delhi, defendant no. 4 died on
08.04.2015 at Delhi, defendant no. 8 died on 23.03.1973 at Delhi,
defendant no. 9 died many years ago but we do not know the last
address. The defendant no. 11 died on 24.04.2014 at Mumbai. The
defendant no. 2 retired from the partnership firm on 31.03.1991, the
defendant no. 6 retired on 27.07.1993, the defendant no. 7 retired on
23.03.1988 and the defendant no. 10 retired in the year 1997. The
plaintiff failed to file the application for setting aside abatement and
bring the legal heirs of deceased defendants. The defendant denied
that on inquiry, two addresses of Chentan Gupta and Vandana Gupta
were found. The defendants stated that the plaintiffs ought to have
joined said Chetan Gupta and Vandana Gupta as a party to the suit
being the legal heirs of the deceased defendants. Hence, prayed to
reject the Chamber Summons.
4. The plaintiff filed rejoinder Affidavit and has denied the
allegations of reply in toto.
5. Heard Advocate Shri. K.D. Shah for plaintiffs and Advocate Shri.
D.A. Barot for Defendant No. 5. Perused the contents of Chamber
Summons and reply supported by Affidavit and rejoinder Affidavit.
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6. It is not case of the plaintiffs that the legal heirs of defendants
are not there. It is only the contention of the plaintiff that he is unable
to found the legal heirs of deceased defendants, therefore to appoint
Administrator as per Order 22 Rule 4A of Code of Civil Procedure.
Issues are famed on 25.09.2014.
7. The suit is filed by the plaintiffs seeking decree to remove the
defendants from the suit premises with all their goods and belongings
and to quit and vacate the possession of the suit premises. The plaintiff
is well aware that some of the defendants are residing at Delhi which
can be gathered from para 1 of the plaint, but at the time of filing the
suit the plaintiff has not stated the addresses of the defendants, who
are residing at Delhi. The main allegations are against the defendant
no. 10 and 11.
8. The Administrator can be appointed to represent the defendants
only in case any party dies during the pendency of the suit and has no
legal representative. The plaintiff has not taken steps even to state
when these defendants expired. Therefore, the statement of defendant
no. 5 on oath about the death of the defendants have to be considered
wherein the defendant no. 8 expired in the year 1973 thereby the suit
against the defendant no. 8 is not maintainable.
9. The plaintiff should have taken efforts to find out the legal heirs
of all these defendants but instead of that, the time is consumed by the
plaintiffs only by adjourning the proceeding and stating that it is the
defendants who have not stated the information about the legal heirs
of the defendants. The defendants have to inform the Court about the
death of the person and not the name of the person who are the legal
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heirs. The Chamber Summons is not tenable, hence pass following
order :
ORDER
1. The Chamber Summons is rejected.
2. No order as to costs.
3. Accordingly, the Chamber Summons is disposed of.
(SMT. S.S.NAGUR)
Judge
Dt.: 23/10/2021 City Civil Court,
Gr. Mumbai
Declared on : 23/10/2021
Dictated on : 23/10/2021
Typed on : 23/10/2021
Checked & Signed on : 29/10/2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
30/10/2021 5.00 p.m. Prachi Y. Potdar
Stenographer – Grade I
Name of the Judge HHJ Smt. S.S. Nagur
(C.R.NO.4)
Date of Pronouncement of
Judgment/Order.
23/10/2021
Judgment/order signed by P.O on 29/10/2021
Judgment/order uploaded on 30/10/2021
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