Order 1

Order Details: Order on Exhibit
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(CNR No.MHSCA3-000057-2022)
IN THE COURT OF SMALL CAUSES AT MUMBAI
(BANDRA BRANCH)
ORDER BELOW EXHIBIT NO.8
IN
R.A.E.&.R. SUIT NO.72 OF 2022
Mr. Nemji Karamshi Gangar …. Plaintiff
Versus
Mrs. Maltidevi Kamlashankar Tripathi .... Defendant
And
Mr. Trilok Kamlashankar Tripathi .... Respondent
Shri. Gulabsingh S. Yadav, Advocate for the plaintiff.
Coram : Shri. A. J. Fatale, Judge.
C.R.No.34(BB),
Date : 04.04.2024.
ORAL ORDER :-
1. Perused the application and record.
2. The present application is filed by the plaintiff for
granting permission for carrying out amendment and consequential
amendment in the plaint by deleting the name of deceased defendant
from cause title of the plaint and by adding the respondent as party-
defendant being the heir and legal representative of the deceased
defendant by condoning the delay and setting aside abatement.
3. It is the contention of the plaintiff that the process and
copies of the suit was sought to be served upon the defendant
through the bailiff of this Court on 24.02.2022. However, the
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defendant could not be served with the process and copies of present
suit as he was reported to have expired by the bailiff of this Court.
Upon enquiries, the demise of the defendant was confirmed through
her son Mr. Trilok Kamlashankar Tripathi i.e. the respondent. Prior to
the bailiff report, the plaintiff was not aware about the death of
defendant. Hence, the present suit came to be filed against the
defendant due to lack of knowledge of her death to the plaintiff.
Enquiry as to all the legal heirs of the deceased defendant was sought
to be made through the respondent herein but the said information
was not revealed to the plaintiff. Accordingly the present application
is made to bring the respondent on record as party-defendant in
place of deceased defendant. The plaintiff crave leave to make
necessary application in future (until disposal of present suit) to
bring the other legal heirs of the deceased defendant. The right to
sue survives in the matter against the respondent. Exact date of
death of the defendant is not known to the plaintiff and the same
could not be known despite of efforts being made by the plaintiff.
Hence, considering the date of knowledge of the death of defendant
being the date of bailiff report, the present application is within time.
However, the delay if so any found to have been caused in the matter
may be condoned as the same is caused due to lack of knowledge.
The abatement, if so any caused in the matter may also be set aside
for the aforesaid reasons. If, the reliefs prayed are granted, no harm,
loss or prejudice would be caused to the respondent. The plaintiff
has lastly prayed for allowing the application.
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4. In spite of granting opportunity, respondent failed to
appear and file reply. Hence, as per the order dated 15.01.2024,
application is proceeded exparte against respondent.
5. I have gone through the record and proceeding of the
matter. Perused the bailiff report dated 24.02.2022 submitted at
Exhibit No.7. In the said report, the bailiff has submitted that he
went to serve a copy of summons along-with the plaint on the
defendant on 24.02.2022, but defendant was not found and on his
inquiries with occupant namely Mr. Sanjay Tripathi i.e. son of the
defendant, he was informed that said defendant has expired long
back. The plaintiff has filed present application on 29.04.2022.
Accordingly, the notice was ordered to be issued to the respondent.
As per bailiff report dated 02.06.2022 the respondent was not found
on the given address. Thereafter again notice appears to be issued
and it is reported by the bailiff dated 25.07.2022 that respondent was
not found. Thereafter as per order below Exhibit No.10, the notice
was issued by registered Post A.D. as well as by pasting.
Acknowledgment is received of the registered Post A.D. The bailiff
has filed report dated 30.11.2022 contending that on enquiry made
with the occupant Mr. Sanjay Tripathi i.e. the son of the defendant,
he reported that he do not know anything about the said respondent
and also they have purchased the said premises and said premises is
belonging to them. The said Mr. Sanjay Tripathi not appears to be
allowed to affix the copy of notice along-with application on the
outer door of the suit premises.
6. Considering the facts and circumstances on record, in my
opinion, as one Mr. Sanjay Tripathi claiming to be in possession of the
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suit premises, he is necessary party to the present suit to enable the
Court effectually and completely to adjudicate upon and settle all the
questions involved in the suit. It also appears to me that the presence
of the respondent is also necessary in the present suit. No prejudice
would be caused to the respondent as well as to alleged Mr. Sanjay
Tripathi, in the event of allowing the application. Hence, I pass the
following order:-
O R D E R
1. Application is allowed.
2. Delay is condoned.
3. Abatement is set aside.
4. The plaintiff is permitted to carry out
amendment in the plaint by deleting
the name of deceased defendant from
the cause title of the plaint and by
adding on record respondent as heir
and legal representative of the
deceased defendant in the plaint by
filing amended plaint and its copy for
other side on record on or before next
date.
5. The plaintiff is hereby directed to add
Mr. Sanjay Tripathi as defendant in the
present suit by filing amended plaint
and its copy for other side on record
on or before next date.
Place : Mumbai (A. J. Fatale)
Date : 04.04.2024 Judge,C.R.No.34(BB).
Order Dictated & Typed on : 04.04.2024
Order Checked & Signed on : 04.04.2024
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