Interim Order 1

Order Details: Chamber summons
Pdf Text: 1 Ch/sum. no.2236-19, In Suit no.8258-95
PMHCC010129622019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO.2236 OF 2019
IN
SHORT CAUSE SUIT NO.8258 of 1995
IN
(High Court Sum. Suit no. 492 of 1995)
Mr. Awadhnarayan B. Upadhyay ...Plaintiff
Vs.
Mr. Allauddin Kasam Mahesaniya ..Defendant
AND
Shri Gulabchand Awadhnarayan Upadhyay ...Applicant
CORAM : HIS HONOUR JUDGE
SHRI VIRENDRA D. KEDAR
(COURT ROOM NO.01)
DATE : 14th DAY OF SEPTEMBER, 2022
: Appearances:
The learned Adv. K.K. Pandey for the applicant
The learned Adv. Ashish Varma for the defendant
ORAL ORDER
The applicant has taken out the present chamber
summons for bringing his name on record in place of deceased
original plaintiff being his legal representative/ legal heirs and for
other reliefs.
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2 Ch/sum. no.2236-19, In Suit no.8258-95
2. In short, it is contention of the applicant that, the
original plaintiff Awadhnarayan Upadhyay was his father, who died
during pendency of the suit on 10/09/2006, at native place at village
Ghagharpara, District Jaunpur, in the State of Uttar Pradesh. The
mother of the plaintiff also died on 21/07/2003. The applicant is the
only legal heirs and legal representative of the deceased plaintiff.
Hence it is necessary to bring him on record being the legal heirs of
the deceased original plaintiff. If the order as prayed is not granted in
his favour then he will suffer irreparable loss which cannot be
compensated in terms of money. Hence the chamber summons may
kindly be allowed.
3. The defendant strongly opposed the chamber summons
by filing reply on affidavit. It is submitted that the present chamber
summons is badin law and not maintainable. The father of the
applicant died on 10/09/2006 i.e. prior to 13 years ago. However no
steps taken by the applicant for bringing himself on record. The suit
thus automatically stands abated.
4. It is further contention of the defendant that, as the
deceased plaintiff failed to appear before the Court, hence the suit
stands dismissed in default vide order dated 21/09/2013. The
applicant has not filed any application for condoning the delay. The
applicant failed to show sufficient cause for condoning the delay. The
chamber summons taken out by the applicant is hopelessly barred by
the law of limitation. Hence the chamber summons may kindly be
dismissed.
5. The applicant has filed rejoinder to the reply filed by the
defendant on affidavit. The applicant has denied all the adverse
contention of the defendant. It is submitted that, the applicant is not
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3 Ch/sum. no.2236-19, In Suit no.8258-95
aware of the above suit. The father and mother as well as the
advocate, who was conducting the matter, expired during pendency
of the suit. The applicant came to know about the proceeding on
07/11/2019. Thereafter the applicant had obtained certified copy on
15/11/2019 and filed the present chamber summons on 18/11/2019.
Thus, the chamber summons is well within limitation. Hence, it may
kindly be allowed.
6. Heard the learned advocate for the respective parties at
length. Perused the record.
7. In view of rival submission, following points arise for my
determination to which I have recorded my findings with reasons as
below:
Sr.No. Points Determination
1. Whether the applicant is entitled for
the reliefs claimed in the chamber
summons?
No
2. What order ? As per final order.
REASONS
As to point no.1:
8. The father of the applicant had filed the suit for recovery
of an amount of Rs.2,41,875/from the defendant. It is contention of
the applicant that his father i.e., original plaintiff died on
10/09/2006. Therefore the applicant has taken out present chamber
summons for bringing himself on record being legal
heirs/representative of the deceased plaintiff. It is to be seen that, the
suit was dismissed in default on 21/09/2013. Neither the applicant
nor the advocate for the plaintiff has informed about the death of the
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original plaintiff to the Court. The present chamber summons is taken
out after the period of 13 years. No sufficient cause shown by the
applicant for causing delay in filing the present chamber summons.
The applicant has not filed the application for seeking condonation of
delay caused in bringing himself on record being legal representative
of the deceased plaintiff. The period of limitation for bringing the
legal heirs of the deceased plaintiff on record is 90 days. Thus it is
expected from the plaintiff to shown the sufficient cause for causing
the delay. However, the applicant failed to do so. Therefore the
applicant failed to made out case for bringing himself on record.
Hence my answer to the point no.1 is in negative.
As to point no.2:
9. In view of my above discussion, I pass the following
order.
ORDER
Chamber summons No.2236/19 is hereby dismissed.
Chamber summons is disposed of accordingly.
(Virendra D. Kedar)
Judge, City Civil & Sessions
Court,Gr.Mumbai
Date: 14.09.2022 (C.R. No.1)
Dictated on : 14.09.2022
Transcribed on : 15.09.2022
Signed on :
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5 Ch/sum. no.2236-19, In Suit no.8258-95
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE16.09.2022 NAME OF STENOGRAPHER(GI)
Mrs. V. V. Mhatre
TIME:
Name of the Judge (With Court room no.) HHJ Shri Virendra D. Kedar
(Court Room No.1)
Date of Pronouncement of JUDGEMENT/ORDER 14.09.2022
JUDGMENT/ORDER signed by P.O. on 16.09.2022
JUDGEMENT/ORDER uploaded on 16.09.2022
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