Appeal From Order (ST) No.28768 of 2013

19th November, 2013

Petitioner Counsel: Mr. RIYAZ I. CHAGLA a/w Mr NEERAV B. MERCHANT i/b M/s THAKORDAS & MADGAVKAR
Respondent Counsel: Ms. MAHEK BOOKWALA a/w Mr. DHARMESH PANDYA i/b M/s PANDYA GANDHI & CO.

Cases Cited:
Union of India Vs. Ram Charan, AIR 1964 SC 215 [Para 5,9]
Mithailal Dalsangar Singh Vs. Annabai Devram Kini, AIR 2003 SC 4244 [Para 8]

JUDGMENT

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.

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 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 Charan AIR 1964 SC 215, 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 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.

8. The Supreme Court in Mithailal Dalsangar Singh Vs. Annabai Devram Kini AIR 2003 SC 4244, 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.

Ordered accordingly.