Bombay High Court
Ajay Avinash Solanki vs Umesh Bhanjibhai Yadav on 19 November, 2013
Bench: Anoop V. Mohta
1 aost-28768-2013
Dond
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER (ST) NO.28768 OF 2013
1.Ajay Avinash Solanki
of Bombay Indian Inhabitant
residing at Bldg. No.2, 4th floor,
Flat No.9, Doctors Quarters,
J.J. Hospital Campus, Bycylla
Mumbai-400 008.
2.Vaibhavi Shailesh Barot
of Bombay Indian Inhabitant
residing at 204, Thakur Tower, 2nd floor
C.S. Road, Virar (West) Dist.Thane.
3.Jagruti Sandeep Damania
4.Lalita Ratilal Bhataria
5.Dilip Ratilal Bhataria
6.Rajendra Ratilal Bhataria
7.Kokila Ratilal Bhataria
All of Indian Inhabitant residing at
H-789, Railway Cement Quarters
Opp. Sudev Mata Mandir, Parel
Dohad (Panch Mahal)-389 160(Gujrat)
8.Devyani anil Kanthare
of Mumbai Indian Inhabitant
resodomg at D-702, Shanty Complex
Tunga Village, Saki Vihar Road,
Opp. L & T Gate No.7, Powai
Andheri (East),Mumbai-400072.
9.Daksha Dilip Kanavia
of Mumbai Indian Inhabitant
residing at A3, Divya Prakash Soc.,
Dadabhai Cross Road No.1,
Near Bhavans College
Andheri (West),Mumbai-400058.
10.Pushpaben Suresh Variava
of London, U.K. Inhabitant
residing at 46, Dagmar Avenue,
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Wembli, Middx-HA-9-8DF, UK.
11.Ushaben Hasmukh Parmar.
Of Delhi Indian Inhabitant
residing at 21-A, Pocket A/14,
Kalkaji Extension,
New Delhi-110019. ...Appellants.
(Org.Defendant Nos.1AB to
1AD & 1B to 1-C, 1-D, 1-E,
` 1-G, 1-H, 1-I & 1-J)
Vs.
1.Umesh Bhanjibhai Yadav
of Bombay Indian Inhabitant, residing at
3, Shri Niketan, Vithalbhai Road,
Vile Parle (West), Bombay-400056
2.Ramesh Ishwarlal Umervanshi
son of Leelaben Umervanshi
Aged-59, 200, Ashiwad Villa,
New City Light Road
Bharthana (Vesu) Road,
Near Sait Thomas School
Surat-395007
3.Dr.Bharti Vijay Umervanshi
Aged-48 years
4.Hetvi Vijay Sheth
Aged 19 years.
5.Chinmay Vijay Sheth
Aged 13 years
All residing at A-17, Professors
Quarters, 2nd floor, Block No.3,
New Civil Hospital Campus,
Near Dean Banglow Majura Gate,
Surat-395001.
6.Jyoti Babu Bhesania
Aged 60 years
Residing at 37, Panchavati Society
Ramnagar, Surat 395005.
7.Rekha Pravin Bhesania
Aged 51 years
Residing at 103, Indraprasad Apt.,
Morabhagad, Four Road,
Surat-395005.
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8.Meena Ramesh Parmar.
Aged 53 years
Residing at 26, Shreedhar Hsg. Soc
Jahangirpura, Olpad Road
Rander, Surat-395005. ..Respondents.
(Org.Res.No.1 is original Plff
and Respondent Nos.2 to 8 -
org.Deft Nos.1FA,1FB,1FC,1FD
1FE, 1FF & 1FG legal heirs of
org.Deft. No.1-F)
---
Mr. Riyaz I. Chagla a/w Mr Neerav B. Merchant i/b
M/s Thakordas & Madgavkar, for Appellants.
Ms. Mahek Bookwala a/w Mr. Dharmesh Pandya i/b
M/s Pandya Gandhi & Co., for Respondent No.1.
---
CORAM : ANOOP V. MOHTA, J.
DATE : 19 NOVEMBER, 2013.
ORAL JUDGMENT:
Rule returnable forthwith. Heard finally by consent of learned
counsel appearing for the parties.
2 The Appellants, original Defendants, have challenged order dated
26 August 2013, passed by the learned Judge of City Civil Court, Greater
Mumbai thereby granted Chamber Summons in terms of prayer clauses (a) and
(b) (for bringing the legal heirs as per schedule annexed to the supporting
documents/Chamber Summons of original Defendant No.1), subject to cost of
Rs.5000/-. The amount has been deposited and the same is received by the
Appellants.
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3 The Order 22 Rule 10A of the Code of Civil Code Procedure
(CPC) contemplates the obligation of the Advocate appearing for Defendants to
intimate the death of a party. Though required, not provided the same for
unknown reason and/or for a long period. In supporting affidavit there were
various reasons including non-cooperation and/or non intimation from the other
side to provide the date and details of the deceased is made out.
4 The requirement of bringing legal heirs on record of either of the
parties is necessary for a proper adjudication of the issues. The earliest steps is
the requirement, as 90 days, is the period prescribed for the same, failing which
the suit stands abated against such Defendants. However, there is a provision to
bring the legal heirs on record even if there is a delay. The legal heirs therefore
just cannot be brought on record after prescribed period is over unless a case is
made out and and/or an application is filed including to set aside the abatement.
There is no denial to the fact of delay in bringing the legal heirs on the record. As
per the affidavit, in my view, the case is made out and also the justification.
Once the non-cooperation from the other side is recorded, time so required to be
taken by the other party to collect the information and to bring the names and
details of such legal heirs, just cannot be overlooked. Having done so, the
Chamber Summons so filed just cannot be rejected merely because, as contended
by the learned Counsel appearing for the Appellant, that there is no specific
prayer and/or averments made to set aside the abatement. There are averments
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and material placed on record to justify the legal heirs of deceased defendant
no.1 and also of 1A to be brought on record.
5 The submission based upon judgment so cited- Union of India Vs.
Ram Charan1, is not acceptable in view of peculiar facts and circumstances of the
present case, so also of the facts involved therein. Both are distinct and
distinguishable. There is no question of brining legal heirs on record suo motu
by the Court, but once an application/Chamber Summons is filed, supported by
affidavit and reasons for delay, merely because averments and/or prayers are not
made to set aside the abatement, that itself in my view no reason to reject the
Chamber Summons, which is nothing but an important facet of deciding the suit
in all respect covering and concerning the their legal heirs' rights also. Once the
application/Chamber Summons is taken out and if case is made out the grant of
same, in my view, in no way can be stated to be bad in law and/or perverse
merely because there is no separate application/prayer made to set aside the
abatement. Once the party moves an application to bring the legal heirs on record
after prescribed period, it definitely implied and include to set aside the
abatement first and to pass order to bring the legal heirs on record. This is also
for the reasons that once the suit is abated and for want of appropriate
application within time and the court's order is not necessary, the
suit/proceedings stand abated automatically. The formality of moving and/or
1 AIR 1964 SC 215
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making no prayer or to set aside abatement, in no way affects the basic case of
bringing legal heirs on record. In this case, the same has been done and
therefor, the learned Judge has rightly accepted the Chamber Summons and the
case of the Plaintiff and passed the order.
6 Another factor which the learned Judge has taken note of is the
Notice of Motion for recalling order so passed on the ground that the suit
property is undivided property of all the Defendants and as all should be the
necessary parties including the legal heirs of the deceased party.
7 The Court even otherwise is empowered to bring and/or to add
parties on record, in such situation, the Court cannot deny to bring on record all
the necessary parties. The legal heirs of Defendant No.1F and/or 1FA are added
therefore in no way cause any injustice and/or affects the rights of the
Defendants. On the contrary, it is necessary and therefore the order so passed in
no way can be stated to be perverse and/or bad in law merely because specific
averments and/or prayer is not made to set aside the abatement. In my view also
that is just formality a purpose to bring legal heirs, if it is recognized and
important, the submission to interfere with the order so passed is unacceptable.
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8 The Supreme Court in Mithailal Dalsangar Singh Vs. Annabai
Devram Kini2, has observed as under:
"A prayer for bringing the legal representatives on record, if
allowed, would have the effect of setting aside the abatement as the
relief of setting aside abatement though not asked for in so many
words is in effect being actually asked for and is necessarily
implied. Too technical or pedantic an approach in such cases is not
called for."
9 Merely because Union of India Vs. Charandas (Supra) as relied
upon by the learned counsel appearing for the Appellant has not referred, that
itself cannot be the reason to interfere with the order so pass as the facts and
circumstances of that case were totally different and so also the situation in the
present matter.
10 Therefore, taking overall view of the matter, I see there is no reason
and/or case made out to interfere with the order so passed. Appeal from Order is
accordingly dismissed. No costs.
(ANOOP V. MOHTA, J.)
2 AIR 2003 SC 4244
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