Single judge order dismissing a chamber summons for substitution of the deceased plaintiff due to unexplained 12-year delay, noting lack of bona fide intent and potential suit abatement.
Chamber summons dismissed; suit will abate.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CHAMBER SUMMONS NO.663 OF 2013 IN
SUIT NO.3494 of 1991
Brijbhushan Singh @ Babasingh
..Plaintiff.
Versus
Nulsi N. Wadia and others
..Defendants.
Mr. Sandeep Mahadik i/by Mr. Manojkumar Upadhyay, for the Plaintiff.
Ms. Falguni Thakkar i/by Doijode Associates, for Defendants No.1 to 3.
CORAM : G.S. Patel, J. Monday, 20th January 2014.
P.C. :
1.This is a chamber summons filed by one Ranvijay Brijbhushan Singh
seeking that the name of the original plaintiff, his father, be deleted as he has
expired after the filing of the suit and that his own name be substituted.
2.An affidavit in support has been filed by the applicant’s purported
Constituted Attorney Suresh Rayasingh Thakur. The connection between the
plaintiff and his constituted attorney is unclear.
3. The matter was called out in the morning session. None appeared for
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the applicant. The appearance of Mr. Manojkumar Upadhyay is clearly shown
for the applicant. The matter was kept back. At 3.00 p.m., the matter was
called out again, and again none appeared for the applicant. After
pronouncement of this order began in Court, Mr. Mahadik appeared and asked
for the matter to be adjourned saying that Mr. Upadhyay is in personal
difficulty.
4.On the previous occasion too, on 24th December 2013, the matter was
adjourned at the request of the Advocate for the applicant. It appears that the
only intention of the applicant is to delay the matter as long as possible.
5.The Chamber Summons seeks also, apart from the deletion of the name
of the original plaintiff and substitution the name of the applicant, a
condonation of delay in taking out the chamber summons. The applicant
claims that this delay is only of 30 days. Prima facie, this appears to be
incorrect. The applicant has computed this delay by reckoning it from the time
when he changed his Advocate and executed a new Power of Attorney. That
computation of delay is wholly erroneous. The plaintiff passed away in the year
2000. The delay is of 12 years.
6.The only explanation for the delay is that the applicant had gone to his
hometown, away from Mumbai, where he stayed for what he describes as a
long time. He claims that he returned to Mumbai only in July 2012, which is
when he contacted the original plaintiff’s Advocate. If the applicant was
unaware of the proceedings instituted by his father, why he then chose to
contact the earlier Advocate is unclear.
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7.Even more inexplicable assertions are made in paragraphs 3 and 4. In
paragraph 3, the applicant states that he was under an impression that the
original plaintiff had executed a Power of Attorney in favour of the applicant's
present constituted attorney. It was only when realized that this Power of
Attorney would not survive his father’s death that he decided to take steps.
From this, it prima-facie appears that the real hand behind this entire litigation
is not the plaintiff or the applicant, but the person who claims to have the
Power of Attorney from them.
8.This application does not seem to be bona fide. There is absolutely no
tenable or valid explanation for the delay. The Chamber Summons is
dismissed. The consequence is that the suit will abate. There is no prayer for
setting aside the abatement either. The result can only be that the suit itself
will stand dismissed.
9.At the request of Mr. Mahadik, this order is kept in abeyance till
tomorrow only to accommodate Mr. Upadhyay.
(G.S. Patel, J.)
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3 issues framed by the court
Whether a chamber summons for substitution of plaintif is bona fide when there is a 12-year delay without valid explanation.
Whether the delay in filing the chamber summons justifies condonation.
Whether the suit will abate due to lack of substitution of the deceased plaintiff.
1 provisions across 1 enactments
Ranvijay Brijbhushan Singh
Nulsi N. Wadia and others
G.S. Patel
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court