Final Order 1

Order Details: Chamber summons
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IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
CHAMBER SUMMONS NO. 2318 OF 2019
IN
COUNTER CLAIM NO.05 OF 2015
IN
L.C. SUIT NO. 1500 OF 2011
1. Mrs. Kalyani Tukaram Gangan ]
and others ].. Plaintiffs.
(As Legal heirs and Representative
of the original Defendant No.1)
V/s.
1. Mr. Suresh Ramchandra Gangan ]
and others. ]..Defendant No.1
(Original Plaintiff)
Advocate Mr. Mangesh Parte for plaintiff.
Advocate Mr. Deepak Chitnis for defendant No. 1 in Counter Claim.
CORAM : HIS HONOUR JUDGE
MR. SITARAM N. PATIL
(C.R.NO.09)
DATE : 14th JULY 2022
ORAL ORDER
This Chamber Summons has been taken out by the
plaintiffs in Counter Claim who are the defendants in the suit to permit
them (legal heirs and representatives of original defendant No.1) of the
proposed amendment set out at Annexure- “A” annexed to the Chamber
Summons and to carry out amendment to the plaint.
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2 The affidavit in support of Chamber Summons is filed
wherein stated that legal heirs and representative of the defendant No.1
(since deceased) filed above Counter Claim in the said suit for
administration of estate of deceased defendant No.1 for the reliefs
stated in the Counter Claim. During the pendency of Counter Claim,
the original defendant No.2 died and his name is deleted from the cause
title of the plaint and the name of his legal heirs was brought on record
and the amended copy of the plaint has been given to the plaintiff in the
said suit. No harm and prejudice will cause to the plaintiffs and/or
defendants, if this Chamber Summons be allowed. If there is any delay
in taking out present Chamber may be condoned and allowed.
3. The affidavit in reply of defendant No.1 is filed who is
plaintiff in the Suit wherein stated that he has filed suit for declaration
and injunction and other reliefs. In the said suit he has brought legal
heirs of his deceased brother Late Chandrakant Ramchandra Gangan
immediately after his death. The plaintiffs who are in Counter claim
are very well aware about the demise of defendant No.2 Chandrakant
Gangan and also aware about the name and addresses of the legal heirs
of the said deceased. They have not taken out the application within
stipulated period for bringing the legal heirs of deceased. Therefore the
above counter claim has bated against the legal heirs of defendant No.2.
4. It is further stated that the plaintiffs who are in Counter
Claim have deliberate intention to prolong the proceedings of original
suit. This Chamber Summons is barred by law of limitation. Hence,
prayed for rejection of Chamber Summons.
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5. Heard the learned advocate for the plaintiffs and the
learned advocate for the defendant.
6. The learned advocate for the defendant in Counter Claim
has relied upon the Judgments in the case of State of Kerala V/s.
Madhavakurup Ramachandran Pillai reported in AIR 1999 Kerala 359
and Union of India V/s. Ram Charan (deceased) through his Legal
Representatives reported in 1964 S.C. 215. In the present case, the
defendant who is the plaintiff in the suit has already brought the name
of legal heirs and representatives of defendant No.2. Therefore, legal
heirs and representatives are required to be brought on record. The said
ratio is not applicable to the facts of the present case.
7. Perused Affidavit and reply in support of Chamber
Summons. It appears that the original defendant No.2 died on
05.06.2019. The original plaintiff has already amended the plaint on
12.07.2019 and entered the name of the legal heirs of defendant No.2
as defendant Nos.2(a) and 2(b) and it is admitted by the plaintiffs in
Counter claim who are the defendants in the Suit. Therefore, in Counter
Claim, the legal heirs and representatives of defendant No.2 are
required to bring on record.
8. The original defendant No.2 died on 05.06.2019 and
Chamber Summons is taken out on 04.11.2019. It is short delay.
Considering the nature of the Counter Claim, if the legal heirs of
defendant No.2 are not brought on record, it will cause harm to both
the parties or there would be possibility to defeat the right of the
plaintiffs who are in the Counter Claim. It is just and proper to condone
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delay caused by the plaintiff for bringing on record legal heirs of
deceased defendant No.2, so as to decide real controversial issues
involved in the Counter Claim and the suit on merits. Therefore, in the
interest of justice, the present Chamber Summons is to be allowed, but
considering delay caused, costs is necessary to be imposed upon the
plaintiffs. With this, I proceed to pass the following order:-
9. In my view, the amendment ought to have been allowed as
it will not change the nature of the Counter Claim and the suit and it
will avoid multiplicity of the proceeding. In such circumstances, it will
just and proper to allow the Chamber Summons. With this, I proceed
to pass the following order:-
ORDER
1. Chamber Summons No. 2318 of 2019 is made
absolute subject to the payment of costs of Rs.2,000/-
payable by the plaintiffs jointly who are defendants in the
suit to the defendant No.1 who is original plaintiff in the
suit on or next date.
2 On payment of costs, delay caused is hereby
condoned and the plaintiffs who are in the Counter Claim,
are hereby allowed to carry out amendment in the Counter
Claim as per the schedule annexed with the Chamber
Summons on or before next date and further directed to
place on record amended copy of the Counter Claim.
3. The plaintiffs are directed to furnish amended copies
of the Counter Claim to the defendants.
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4 Chamber Summons No.2318 of 2019 stands
disposed of accordingly.
(SITARAM N. PATIL)
Judge,
City Civil Court,
Date: 14/07/2022 Gr. Bombay.
Dictated on : 14/07/2022
Transcribed on : 14/07/2022
Signed on : 14/07/2022
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
15/07/2022 At 11.50 a.m. MRS. SUPRIYA S.PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court Room
Number)
HHJ MR. SITARAM N. PATIL
(C.R.NO.09)
Date of pronouncement of Judgment/
Order
14.07.2022
Judgment/Order signed by P.O. on 14.07.2022
Judgment/Order uploaded on 15.07.2022
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