Final Order 1

Order Details: Chamber summons
Pdf Text: Ch/s No. 2074/19 in Suit No. 1160/98. 1 Order.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
CHAMBER SUMMONS NO. 2024 OF 2019
(CNR NO. MHCC010117592019)
IN
S. C. SUIT NO. 7779 OF 1998
(H.C. SUIT NO. 1160 OF 1998)
Urmiladevi Chhaganlal Kotia
& Ors. ...Plaintiffs/Applicant
Versus
Mr. Jerome Francis D'Souza
& Ors ...Defendant/Respondent
And
Gemma Allan Pereira & Ors. …Respondent
CORAM : HIS HONOUR JUDGE
SHRI U. J. MORE.
(C.R.NO.31).
DATE : 19th NOVEMBER, 2019.
Ms. A. Q Motiwala, Advocate for Plaintiff.
Mr. Hasmukh Danewal, Advocate for Defendant No.5.
ORDER
1. This is a chamber summons supported by affidavit filed by
the plaintiff to bring legal heirs of deceased of defendant No. 2 on
record. It is stated that, suit is filed for specific performance of a
contract against defendant for execution of agreement to sale dated
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Ch/s No. 2074/19 in Suit No. 1160/98. 2 Order.
14.12.1985.
2. It is stated that, The advocate appearing for Defendant No.
3 and 4 appeared before this Hon'ble Court on 5th October, 2019 and
disclosed that the Defendant No.2 i.e. Mrs. Cecilia Aloysius Pereira had
died at Mumbai on 20th February, 2002 It was also informed that the
only son of the said deceased Defendant No.2 had died on 1st
September, 2015 leaving behind and being survived by his widow Mrs.
Gemma Allan Pereira i.e. Respondent No.1. The Advocate appearing for
the said Defendant No. 3 and 4 had tendered a list of the particulars of
the legal heirs of the deceased Defendant No.2 and that of the said
Hermy John D'souza to this Hon'ble Court on 5th October, 2019.
3. It is stated that, the son of Late Mr. John Jerome D'souza
i.e. Mr. Hermy John D'souza one of the signatories to the Agreement for
Sale dated 14th December, 1985 had died prior to the institution of the
present Suit i.e. 9th July, 1997. The Plaintiffs were unaware about the
death of the said Hermy John D'souza and were unable to trace his
whereabouts and/or particulars of the legal heirs of the said deceased
Hermy John D'souza despite due and diligent efforts in the regard. The
Plaintiffs were therefore constrained to file the present suit without
adding the said Hermy D'souza as party Defendant to the present Suit
The plaintiffs had not been informed about the death of the said Hermy
John D'souza and no particulars of his legal heirs and representatives
had been furnished by the Defendant Nos. 1 to 4 even after filing of the
present Suit. The plaintiffs have for the first time been informed about
the particulars, names and details of the Respondent Nos.2 to 5 on 5th
October, 2019 as stated herein above.
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Ch/s No. 2074/19 in Suit No. 1160/98. 3 Order.
4. On the other side defendant has filed say and objected to
allow the application. Heard Ld. Adv. A.Q. Motiwala for the plaintiff.
Heard Ld.Adv.Hasmukh Danewal for defendant No.5. None for other
defendant present.
5. It is admitted that suit is filed by the plaintiff against the
defendant with a relief that defendant to jointly and severally and
decreed to specifically perform this agreement dated 14.12.1985 to the
plaintiff the defendant served and appear in the suit the matter was
originally before the Hon'ble High Court having Original Civil
jurisdiction and specifically transferred to the this court on the ground
of pecuniary jurisdiction. The plaintiff came with case that he got
information about the death of defendant No.2 on 05.10.2019 by
advocate appear for defendant no. 3 and 4, defendant No. 2 was dead
on 20.02.2002 leaving behind and being survive by his widow Mrs.
Gemma Allan Pereira i.e. respondent no. 1.
6. The plaintiff further stated that Mr. Hermy John D'souza
was one of the signatory to the agreement for sale of dated 14.12.1985.
His son of late Mr. John Jerome D'souza has died prior to the institution
of the present suit which is filed on 09.07.97. As a plaintiff was
unaware of the death of Mr. Hermy D'souza. He could not bring
whereabouts of the defendant and he was constrained to file a suit
without making party to him. He was not having address and more
details of Mr. Hermy D'souza. He acknowledge about details from
respondent no. 2 and 3. He acknowledge about Mr. Hermy D'souza on
the same date by Ld. Advocate of defendant No. 3 and 4 as he got
knowledge about death of the defendant no. 2 on 05.10.2019 reason of
delay to file chamber summons is categorically explained by plaintiff.
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Ch/s No. 2074/19 in Suit No. 1160/98. 4 Order.
The plaintiff was hospitalized and has undergone “Angioplasty” and was
advised bed rest the remaining plaintiff 1.(d) and 1.(b)III were out of
Mumbai since 15.10.2019 and due to the vacation of Diwali and illness
of plaintiff No.1(c) there is some delay to file chamber summons with
affidavit.
7. I Have the opinion, that if chamber summons allowed
defendant No.2 being signatory to the agreement of sale dated
14.12.1985 his legal heirs require to be bring on record to decide suit
on merit per contra as far as record defendant bringing the legal heirs of
deceased Mr. Hermey John D'souza is also important as He was party in
the capacity as a signatory to the agreement to sale dated 14.12.1985. It
would not caused any prejudice other defendants by adding this parties
as legal heirs of deceased defendant No. 2 and deceased Mr. Hermy
John D'souza as the proposed defendant No. 6(a) to 6(d). considering
the facts and circumstances of the case I have the opinion the chamber
summons is needs to be allowed in the interest of natural justice and
certainly the legal heirs of the defendant will have right of to produce
there case if this application is allowed, but as there is certain delay on
the part of plaintiff the application is allowed with certain cost. Hence
the order :
ORDER
1. Chamber Summons No. 2074/2019 is allowed subject to
cost of Rs.10,000/(Rupees Ten Thousand only) to be paid
to DLSA.
2. Plaintiff to carry on amendment as prayed within two
weeks.
3. Chamber Summons No. 2074/19 is disposed off.
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Ch/s No. 2074/19 in Suit No. 1160/98. 5 Order.
(U.J.More)
Judge,
City Civil & Sessions Court,
Date : 19.11.2019. Mumbai.
1. Dictated on : 19.11.2019
2. Transcribed on : 20.11.2019
3. Signed on : 23.11.2019
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Ch/s No. 2074/19 in Suit No. 1160/98. 6 Order.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
25/11/2019. 12.00 p.m. Mr.G.R.Suryawanshi
Name of the Judge (with Court Room no.) HHJ Shri. U.J.More
(Court Room No.31).
Date of Pronouncement of Judgment/Order 19/11/2019.
Judgment/Order signed by P.O. on 23/11/2019.
Judgment/Order uploaded on 25/11/2019.
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