Dismissed

Halimabai Abdul Gafoor Multani v. Hajani Aminabai Wd/O. Haji Abdul Karim and Anr. and Mohammed Rafique Abdul Karim

Bombay HC26 Nov 2008CHS/435/2006

Case brief

AI extract

What is this about?

Chamber summon for bringing heirs of deceased defendant on record was dismissed as withdrawn, with liberty to file fresh summons after obtaining death particulars.

What did the court decide?

Chamber summons dismissed as withdrawn with liberty to file fresh summons after obtaining particulars regarding the death of the deceased defendant.

Halimabai Abdul Gafoor Multani Vs Hajani Aminabai Wd/O. Haji Abdul Karim and Anr. and Mohammed Rafique Abdul Karim — Bombay HC (2008) — LawSathi Research

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

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CHAMBER SUMMONS NO. 435 OF 2006

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SUIT NO. 4712 OF 1997

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Mrs. Halimabai Abdul Gafoor Multani. ...Plaintiff. V/s. Mrs. Hajani Aminabai wd/o. Haji Abdul Karim & Anr. ...Defendants. And Mohammed Rafique Abdul Karim. ... Respondent.

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Mr. Varma i/b. Ashok Saragoi for the Plaintiff. Mr. Atul Singh i/b. Anil C. Singh for Defendant 2.

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CORAM : S.C. DHARMADHIKARI,J.

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26TH NOVEMBER 2008.

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P.C. :

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. This is a Chamber Summons for bringing the heirs

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and Legal Representatives of the deceased Defendant No.1

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on record. There is a prayer to set aside the abatement.

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2.	It is	stated in the a	ffidavit in su	pport	by the
Plaintiffs	that	during	the	pen	dency	of	the	Suit,	the
Original	Defend	ant No.1	made	an	attem	pt	to d	eal with	the
property	by	assigning	rights	i	n fa	vour	of	Defendant	No.2.
Therefore,	the	Chamber	Sum	mons	was		moved	for	joining
Defendant	No.2.		It is	con	tended	th	at the	Plaintiff	has
been	making	payment	of rent	i	n re	spect	of	the premise	s to
the	Respondent	to	the prese	nt	Chamb	er	Summons	. He	is
none-else	but	the son	of the		Second	D	efendant.	The	rent
was	paid upto	the ye	ar 2002.		It	is	stated	that the	rent

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was accepted by the Respondent. It is stated that only in the month of March 2006 that the Plaintiff became aware of the death of the First Defendant. The statement in para 4 of the affidavit in support is that even the Respondent refused to accept the rent and it is only thereafter the

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Plaintiff became aware of the death of the deceased

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Defendant No.1.

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An affidavit in reply is filed by Defendant No.2, who has contended that the affidavit in support contains false statement inasmuch as Chamber Summons No.644 of 2003 was filed in this suit for adding the same Respondent as

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party Defendant but this Chamber Summons was withdrawn by

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the Plaintiff.

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4.		It i	s stated th	at the o	riginal Defe	ndant has	sold
the	suit		property	to	the S	econd	Defe	ndant	on	24th	July
1997.		It	is	conte	nded tha	t ano	ther	Cha	mber	Summons	taken
out	being	Cha	mber	Summ	ons No.	1527	of	2004	whe	rein also	the
stateme	nt	was	m	ade	that the	First	D	efendan	t was	no	more
and	had		expired.		Thus, at	both	st	ages,	namely,	at	the
stage	of	the	hearing	of	the	earlier	C	hamber	Sum	mons and	at
the	h	earing	of	the	earlier	Motio	n,	the	Plainti	ff was	very
much	a	ware	of	the	death	of th	e	deceased	Def	endant	No.1.
Therefo	re,	the	presen	t	Chamber	Sum	mons	is	n	ot maint	ainable

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and should be dismissed on the ground of suppression of

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material facts.

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:3:

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After this matter was argued for some time and the

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attention	of	the	Counse	l a	ppearin	g fo	r	the	Plaintiff	was
invited	to	the	order	dated	31st	July		2003	in	Chamber
Summons	644	of	2003	and	since	I	was	incline	d to	reject
this	Chamber	Sum	mons.	In	the	light	of	this	order,	the
Counsel	prays	for	leave	to	with	draw	this	Cha	mber	Summons
with	liberty	to	file	a	fres	h	Cham	ber	Summons	after
obtaining	all	par	ticulars	w	ith	regard	to	the	death	of
deceased	Defen	dant	No.1,		h	is		heirs	and	legal

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representatives, if any. The Chamber Summons is dismissed

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as withdrawn with liberty as prayed.

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(S.C. DHARMADHIKARI,J.)

Halimabai Abdul Gafoor Multani v. Hajani Aminabai Wd/O. Haji Abdul Karim and Anr. and Mohammed Rafique Abdul Karim

Case brief

What is this about?

What did the court decide?

Halimabai Abdul Gafoor Multani v. Hajani Aminabai Wd/O. Haji Abdul Karim and Anr. and Mohammed Rafique Abdul Karim

Case brief

What is this about?

What did the court decide?

What the court decided

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