Allowed

Leela Gajanan Raote and Ors. v. Krishnakumar S.Raote and Anr.

Bombay HC24 Aug 2012APP/309/2012

Case brief

AI extract

What is this about?

The High Court set aside the order dismissing a partition suit as abated. The Court held that since the deceased plaintiff's heirs executed a deed of release, they had no claim, and the amendment application filed with significant delay was allowable.

What did the court decide?

Chamber Summons No.777 of 2011 allowed; suit restored; amendment of plaint within two weeks; impugned order set aside.

Leela Gajanan Raote and Ors. Vs Krishnakumar S.Raote and Anr. — Partition | Bombay HC (2012)

kambli

Appl309.12

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

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APPEAL NO.309 OF 2012

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CHAMBER SUMMONS NO.777 OF 2011

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SUIT NO.1227 OF 1998

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Leela Gajanan Raote ...Appellant v/s. Krishnakumar S.Raote & Anr. ...Respondents

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Mr.Venkatesh Dhond, Sr.Advocate with Dr.Birendra Saraf and Ms.Pooja Kshirsagar i/b Prakash & Co. for appellant.\ Mr.R.M.Vasudeo for respondents.

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CORAM: MOHIT S. SHAH, C.J. & N.M. JAMDAR, J. DATE : 24 August 2012.

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P.C.

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This appeal is directed against the order dated 27 March 2012 of the learned trial Judge of this Court dismissing the suit No.1227 of 1998 as having abated.

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The suit for partition was filed by two sisters, who were original plaintiffs. Defendants are brothers of the plaintiffs. Plaintiff No.2 Nirmala S. Manjrekar expired on 11 March 2008. It is the case of the plaintiffs that after the death of the plaintiff No.2, her heirs executed a deed of release in favour of the plaintiff No.1 Ms.Leela Gajanan Raote and therefore the plaintiffs moved Chamber Summons No.777 of 2011 for bringing on record the aforesaid fact and also to delete the original plaintiff No.2, who has expired and her heirs were not interested in prosecuting the litigation.

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kambli

Appl309.12

The learned trial Judge disposed of the suit as having abated on the ground that no application was made for bringing on record the heirs of the deceased plaintiff No.2 and that the chamber summons for amendment was filed after a delay of 1049 days. The learned trial Judge also took a view that the suit being suit for partition, on death of one of the parties the suit would stand abated in its entirety.

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Having heard the learned counsel for parties, we are unable to appreciate the reasoning of the learned trial Judge. When original plaintiff No.2 expired, it does not mean that the suit would abate in entirety merely because heirs of the original plaintiff No.2 were not brought on record within a period of limitation. In the suit for partition, the decree which the Court would pass, would enure to the benefit of all the parties to the suit including the defendant. In the facts of the present case, since the heirs of the original plaintiff No.2 have executed a deed of release, they do not claim any interest or right in the suit property and therefore, we find no fault with the original plaintiff No.1 having taken out chamber summons for amendment of the plaint in the lines indicated hereinabove.

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In view of the above, the impugned order dated 27 March 2012 is set aside and the Chamber Summons No.777 of 2011 is allowed in terms of prayer clauses (a) & (b) and the suit stands restored. Chamber summons accordingly stands disposed of. Amendment of the plaint shall be carried out within two weeks from today. Appeal stands disposed of accordingly. the interim orders passed in the suit earlier shall continue till final disposal of the suit.

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Appl309.12

It is clarified that all contentions of parties are kept open and it will be open to the respondents/defendants to raise all available contentions, notwithstanding, amendment having been granted.

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CHIEF JUSTICE

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(N.M. JAMDAR, J.)

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Leela Gajanan Raote and Ors. v. Krishnakumar S.Raote and Anr.

Case brief

What is this about?

What did the court decide?

Leela Gajanan Raote and Ors. v. Krishnakumar S.Raote and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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