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2018 Supreme(Bom) 1691

B.P.COLABAWALLA
Ida Fernandes – Appellant
Versus
Cecilia Fernandes – Respondent


Advocates Appeared:
For the Petitioner: Mr. Denzil D'mello
For the Respondent: Mr. Sunny Yadav I/b V.K. Damle

Judgement Key Points

Certainly. Based on the provided legal document, here are the key points:

  1. The case involves a petition challenging the order of the trial court dismissing a Chamber Summons filed to bring the legal heirs of deceased defendants on record (!) (!) .

  2. The defendants in the original suit were represented by advocates before their deaths, which occurred on specific dates (Defendant No.2 on 21st March 2005 and Defendant No.4 on 28th December 2008) (!) (!) .

  3. The Chamber Summons was filed to substitute the legal heirs of the deceased defendants, but there was no notice given by the advocates for the deceased defendants to the court or the plaintiff regarding their deaths (!) (!) (!) .

  4. The legal obligation under Order XXII Rule 10A of the Civil Procedure Code requires that the advocate for a party who has died must inform the court of the death, and the court must notify the other party. This rule is mandatory and aims to prevent uncertainty regarding the status of parties in pending litigation (!) (!) .

  5. The failure to comply with the mandatory notice requirement under Rule 10A led to the trial court's order being set aside, as the court could not properly dismiss the Chamber Summons on the ground of delay or limitation without such notice (!) (!) .

  6. The court emphasized that procedural compliance with Rule 10A is essential for applying the limitation period under the Limitation Act, and non-compliance weighs heavily against dismissing applications on procedural grounds (!) .

  7. The court also noted that the rule's purpose is to clarify the status of parties and ensure proper substitution, especially given the long duration of some suits and appeals (!) .

  8. The order of the trial court was therefore set aside, and the Chamber Summons was allowed, permitting the petitioner to proceed with substituting the legal heirs of the deceased defendants (!) .

  9. Additionally, the petitioner was granted liberty to file appropriate applications to bring the heirs of other respondents, who had also expired, on record before the trial court (!) .

  10. The case underscores the importance of adhering to procedural rules designed to facilitate the proper management of pending cases involving deceased parties, and procedural lapses can be rectified if proper notices are issued as mandated (!) (!) (!) .

Let me know if you need further analysis or specific legal advice.


JUDGMENT :

Rule. Respondent No.1, the only contesting Respondent, waives service. By consent of Respondent No.1, rule is made returnable forthwith and heard finally.

2. This Writ Petition has been filed challenging the order dated 27th August, 2015 passed by the Bombay City Civil Court at Bombay in Chamber Summons No.2836 of 2013 in Suit No.9046 of 2000.

3. This Chamber Summons was filed by the original Plaintiff (the Petitioner herein) to bring the legal heirs of deceased Defendant Nos.2 and 4 on record. It is not in dispute that Defendant Nos.2 and 4 were represented by advocates before the Trial Court. Defendant No.2 expired on 21st March, 2005 and Defendant No.4 expired on 28th December, 2008. It is, in these circumstances, that the Chamber Summons was filed for bringing their legal heirs on record.

4. The delay in filing this application was sought to be explained by the Plaintiff that there was no intimation given by the Defendants' advocate as required under Law, and therefore, the Chamber Summons ought to be allowed. The trial court inquired the relationship of the Plaintiff with the deceased Defendants, when it was stated that the deceased Defendants are the relatives of the P















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