Jayawant Jagannath Patil By His Constuted Aqttorney Nilesh Jayawant Patil vs. 1. Ratansey Karsondas

Order - Status 9: jpc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION NO. 5300 OF 2011 WITH CIVIL WRIT PETITION NO. 5301 OF 2011 Jaywant Jagannath Patil and others .. Petitioners Versus Ratansey Karsondas and others ... Respondents Mr.P. S. Dani i/by Mr. Abdul Latif N. Khatri for the petitioners. Mr. R.V. Singh for respondent No.23 CORAM : R. Y. GANOO, J. DATED : 17rd October, 2011 P.C. Learned Advocate Mr. Dani appearing for the petitioners wants to file affidavits of service on certain respondents. Same are taken on record in each petition. He states that some of the respondents are unserved. Returnable date in the petitions is extended upto 30th November, 2011 in regard to unserved respondents. Petitioners to serve the unserved respondents by hand delivery only and file affidavit of service.

Order - Status 11: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5300 OF 2011 WITH WRIT PETITION NO.5301 OF 2011 Jaywant Jagannath Patil : Petitioner versus Ratansey Karsondas & ors. : Respondents. Shri Nilesh Jaywant Patil CA of the Petitioner present in Court. Mr. Anikt Ludhia i/by Hariani & Co. for Respondent Nos.5,6,10,13 to 15 CORAM : R M SAVANT, J. DATE : 30th November 2011 P.C. 1 The Constituted Attorney of the Petitioner, who is present in court, states that his lawyer Shri Abdul Khatri, is not available. He therefore seeks time. At his request adjourned for three weeks. [R.M.SAVANT, J] lgc

Order - Status 15: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5300 OF 2011 WITH WRIT PETITION NO.5301 OF 2011 Jayawant Jagannath Patil & Deceased Jayshree Jaywant Patil & Ors. .. Petitioners Vs. Ratansey Karsondas & Ors. .. Respondents Mr. Abdul Latif N. Khatri for the Petitioners in both Petitions. Mr. Anketh Nair i/b Mr. Anosh Sequeira i/b M/s. Hariani & Co. for the Respondent nos.5, 6, 10, 12 to 15. CORAM : K.K.TATED, J. DATED : 11/06/2013. PC : At the request of the advocate for the Petitioners, the matter is adjourned to 3rd July, 2013. (K.K.TATED, J.) katkam

Order - Status 20: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5300 OF 2011 WITH WRIT PETITION NO.5301 OF 2011 Jayshree Jaywant Patil and others .. Petitioner v/s. Rastambey Karsondas & Ors. ..Respondent/s Shri R.V.Govilkar with Abdul Latif N. Khatri for the Petitioner in both petitions. Shri Ankit Lohia with Rahul Hingorani i/b. Hariani & Co. for the Respondent Nos.5, 6, 10 and 12 to 15 in both the petitions. Shri Vivek Kantawala i/b. Vivek Kantawala and Co. for the respondent nos.18, 19 and 22 in both the petitions. CORAM: R.Y.GANOO, J. DATED : OCTOBER 22, 2013. P.C. : Heard learned Advocates on both sides. Rule. Rule made returnable on 18.11.2013 as the point involved is very narrow. Learned Advocate Mr. Kantawala waives service on behalf of respondent nos.18, 19 and 22. Learned Advocate Mr. Lohia waives service on behalf of respondent nos.5, 6, 10 and 12 to 15. Rule be served through court as well as by private service. The petitioners to file affidavit of service so far as private service is concerned. Hamdast is granted. The petition be shown for final hearing in the week commencing from 18.11.2013 as rule is made returnable on 18.11.2013 itself. Right from 2011 there was no interim relief granted. Now that the petitions are posted for final hearing they will appear on the relevant date. As of today, no interim relief as regards stay of the trial. [R.Y.GANOO, J.]

Order - Status 24: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5301 of 2011 Jayshree Jaywant Patil & Ors. .. Petitioners v/s. Ratansey Karsondas & Ors. ..Respondent/s Mr.R.V.Govilkar a/w. A.L.N. Khatri for the Petitioners. Mr.Ankit Lohia, Counsel a/w. Mr. Shailesh Poria, Mr.Rahul Hingmire i/b. M/s. Hariani & Co. for the Respondent nos.5, 6.10, 12 to 15. Ms.Sneha Nanandkar i/b. Vivek Kantawala for the Respondent Nos.18, 19 and 22. CORAM: R.Y.GANOO, J. DATED : DECEMBER 21, 2013. P.C. : Original Plaintiff Mr. Jaywant J. Patil, who filed this petition has expired during the pendency of this petition. Said original plaintiff Mr.Jaywant J Patil, since decesed, shall hereinafter be referrred to as original plaintiff. The original plaintiff filed Short Cause Suit No.8031 of 1984 for certain reliefs against various defendants as per the cause title. The original plaintiff had taken out Chamber Summons No.908 of 2010 on 28.9.2010. Affidavit in support dated 28.9.2010 was to be used to support the prayers in the chamber summons. By this Chamber Summons No.908 of 2010, by prayer clause (a) it was prayed that the delay in taking out the Chamber Summons be condoned. By prayer clause (b) it was prayed that name of defendant no.8 Gopalji Virji Surji be deleted and in its place consequential amendment be permitted to be made by joining respondents in the chamber summons i.e. Ms.Jayalaxmi Gopal Virji & Ms. Anjali Gopal Virji. By prayer clause (c) it was prayed that pending the hearing and final disposal of the suit, defendant nos.4, 5, 6, 9,10,12, 13, 14 and 15 be directed to furnish to the original plaintiff or his advocate names, ages and addresses of the heirs and legal representatives of the defendant nos.1, 2, 3, 7 and 11, since expired, to enable the Original plaintiff to take further steps in the matter. To this chamber summons affidavit in reply came to be filed by original defendant nos.5 said chamber summons was opposed by these defendants. They are respondents in this petition. The said chamber summons was heard and disposed of the learned learned Judge of the City Civil Court by order dated 4.2.2011. At this stage it is required to be mentioned that this chamber summons was decided by the learned judge of the City Civil Court by speaking order dated 4.2.2011. In the operative part of the order instead of stating that Chamber Summons No. 908 of 2010 is dismissed, it is mentioned that Chamber Summons No.1024 of 2010 is dismissed. Obviously this is a typographical mistake and to that extent I am inclined to read the order dated 4.2.2011 as having been passed in Chamber Summons No.908 of 2010. To be fair to the learned Advocates who appeared before this Court they stated across the bar, upon instructions, that they have no objection for the court taking the aforesaid view. So far as the Chamber Summons is concerned, it is noted that by this Chamber Summons the original plaintiff wanted to delete defendant no.8 and bring on record Ms.Jayalaxmi and Ms.Anjali as defendants. These two persons are served in this writ petition, however, they are absent. The original defendant nos. 5, 6, 9, 10, 12 to 15 who are respective respondents in this petition are represented by an advocate as mentioned aforesaid. Learned Advocate Mr. Govilkar appearing on behalf of the petitioners submitted that the learned Judge of the City Civil Court ought to have appreciated the provisions of Order 22 Rule 10A of C.P.C. And Order 22 Rule 4 of C.P.C. and the learned Judge should have accepted the submissions made across the bar as regards duty cast upon the advocate appearing for respective defendant to disclose the fact of death of the respective defendant and the date of death, as also the names and other particulars of the heirs of such a defendant. Learned Advocate Mr. Govilkar submitted that the view taken by the learned Judge of the City Civil Court to dismiss the chamber summons was not proper and as such the chamber summons should be made absolute. Learned Advocate Mr.Ankit Lohia supported the impugned order, whereby the learned Judge of the City Civil Court had taken a view that Order 22 Rule 10A of CPC can be interpreted to a limited extent, that is to say, if the advocate for a particular defendant comes to know the fact of death of his client, it would be the duty of the said advocate to inform the court the fact of death of such defendant. He submitted that the Chamber Summons was rightly dismissed. Learned Advocate Ms.Sneha Nanandkar supported the arguments of learned advocate Mr. Lohiya. I have heard learned Advocates on both sides. I have gone through the text of the affidavit in support of the chamber summons. It is required to be mentioned that in the affidavit in support of the chamber summons dated 28.9.2010, the date on which the original defendant no.8 has expired is not mentioned. Same is the position as regards defendant nos.1, 2, 3, 7 and 11. In my view, the date when a particular party has expired and mentioning of the same in the affidavit in support is of importance with reference to the question whether the chamber summons is filed within the period of limitation. Provisions of Article 120 of the Limitation Act, 1963 (Limitation Act) governs the period of limitation for filing application to bring heirs of a defendant on record. The period of limitation is 90 days and time from which the period begins to run is "the date of death of the plaintiff, appellant, defendant or respondent as the case may be". The provisions of Order 22 Rule 4 of Civil Procedure Code also provides for bringing the names of the heirs of the defendant who has expired. In view of the provisions of article 120 of the Limitation Act, mentioning of the date when the person has expired is of importance as stated earlier. To my mind, three dates are relevant (1) the date on which a particular defendant has expired (2) the date on which the plaintiff comes to know about the death of a particular defendant whose heirs are sought to be taken on record and (3) the date on which proceeding is taken out for bringing heirs on record of such a defendant who has expired. In my view, unless the date of death of a particular defendant whose heirs are sought to be brought on record is not mentioned, then it would be difficult for the court to decide whether the application for bringing heirs on record is filed within the period of limitation or beyond the period of limitation. This is so because if the application is filed for bringing heirs of a particular defendant on record and if there is a delay, such a delay has to be explained in the said application. It would then be left to the court to either accept the explanation and condone the delay or to reject the explanation and reject the application filed for bringing heirs of a particular defendant on record. As mentioned earlier, in the affidavit dated 28.9.1010 there is no mention as to the date on which a particular defendant has expired. As such, the minimum requirement for filing an application for bringing heirs of a particular defendant on record is not complied with. The learned Judge of the City Civil Court in his order dated 4.2.2011 has not adverted to this aspect of the matter. In my view, in the absence of the date of death of a defendant whose heirs are sought to be brought on record, the learned Judge could not have granted leave to original plaintiff to take out Chamber Summons. It is on this ground I am inclined to observe that the chamber summons filed by the petitioner being Chamber Summons No,908 of 2010 cannot be termed as a chamber summons properly filed and as such the said chamber summons will have to be termed as not maintainable. Once it is held that the Chamber Summons No.908 of 2010 is not maintainable, the order dated 4.2.2011 passed by the learned Judge of the City Civil Court dismissing the said chamber summons will have to be treated as non-est. This will equally mean that the present petitioners can be permitted to file a fresh chamber summons by mentioning therein the date on which the respective defendant has expired. Since this court is holding that the order dated 4.2.2011 is non-est, the observations made by the learned Judge on the interpretation of Order 22 Rule 10A and Order 22 Rule 4 of the Code of Civil Procedure other observations will be declared as non operative so far as the parties to the chamber summons. In view of the aforesaid discussion, in the first place, the present petitioners will have to ascertain the date of death of original defendant no.8 and other defendants namely defendant nos.1, 2, 3, 7 and 11 and the petitioners will also have to ascertain the names and other particulars of the heirs of defendant nos.1, 2, 3, 7 and 11 and it is thereafter the petitioners would be able to file a proper chamber summons accordingly and seek appropriate reliefs. For doing this, liberty will have to be granted to the petitioners. Needless to mention that if such a chamber summons is filed, all persons who are joined as opponents to such a chamber summons will be at liberty to oppose the said chamber summons by raising appropriate contentions. All contentions in that behalf are left open. Liberty is required to be given to the petitioners to file independent application seeking limited prayer as has been done in terms of prayer clause (c) of the chamber summons, then all the persons who are joined as opponents in the said application can oppose said application. All contentions in that behalf are kept open. In view of the aforesaid observations, following order is passed to dispose of this chamber summons: ORDER i) Order dated 4.2.2011 passed by the learned Judge of the City Civil Court, in Chamber Summons No.908 of 2010 is set aside as nonest, Chamber Summons No.908 of 2010 is dismissed as not maintainable. ii) Liberty is given to the petitioner to file a fresh chamber summons to bring on record heirs of defendant nos.8 as also heirs of defendant nos.1, 2, 3, 7 and 11 by mentioning in the affidavit in support of the chamber summons the date of death of the respective defendant. Needless to mention that the persons who are sought to be brought on record as heirs of defendant nos.8, 1, 2, 3, 7 and 11 will have to be joined as respondents. These respondents and such other defendants who are interested in opposing the new chamber summons are free to oppose the said chamber summons by raising appropriate conclusions. All contentions in that behalf are left open. The learned Judge of the City Civil Court, Mumbai shall decide the chamber summons on merits. Iii) Liberty is given to the petitioners to file independent application seeking limited prayer as has been done in terms of prayer (c) of the aforesaid chamber summons. All the persons who are joined as opponents in the said application can oppose said application. All contentions in that behalf are kept open. iv. In the facts and circumstances of the case, there shall be no order as to costs. [R.Y.GANOO, J.]