(1.) Heard. The petitioner challenges the order dated 2-9-1994 passed in interim Notice No. 1534 of 1993 in R. A. E. Suit no. 1176 of 1991 by the Court of Small Causes at Mumbai. By the impugned order, the trial court has allowed the application filed on behalf of the respondent for amendment in order to bring on record the respondent in place of the deceased plaintiff.
(2.) Few facts relevant for the decision are that one Mrs. Louisa Mathilda Drego filed r. A. E. Suit No. 1176 of 1991 in her capacity as the landlady of the premises comprising of room No. 25-A, East Pali, situated at Bandra, mumbai for eviction of the petitioner from the suit premises on the various grounds stated in the plaint. During the pendency of the suit, the plaintiff expired on 22-7-1993. An application was moved by the respondent Owen Francis drego to permit him to delete the name of the original plaintiff and to substitute his name in her place, which was objected to by the petitioner. The trial Court by the impugned order, in exercise of powers under Order 22, rule 3 read with Order 6, Rule 17 of the Code of Civil Procedure, 1908, hereinafter called as "the C. P. C. " allowed the said application and directed the amendment to be accordingly carried out.
(3.) The impugned order is challenged on three grounds: firstly, that the application which was filed by the respondent Owen Francis drego was on the basis of a deed of gift and claiming to be a transferee of the subject-property on the strength of the said deed of gift and based thereon he had claimed to be the legal representative of the deceased plaintiff to represent her estate. At the same time, the contents of the application disclose that the plaintiff ceased to be the owner of the suit premises as far back as 22-6-1973 and the property was gifted to her son by name Walston drego. As the suit was filed merely in the capacity as the rent collector i. e. landlady, there was no estate as such left for being represented by any legal representative in relation to the suit in question and, therefore, the application could not have been allowed in exercise of powers under Order 22, Rule 3 of the C. P. C. Secondly, even assuming but without admitting that the suit property was the estate of the deceased plaintiff, the records disclose that there are about six legal heirs of the deceased plaintiff to the knowledge of the respondent and yet no steps are taken to bring those legal heirs on record and therefore the suit abates. Reliance is sought to be placed in the decision of learned single Judge in the matter of Parvez Rustom nekoo Vs. Rustom Ardeshir Nekoo, reported in 2003 (2) Mh. L. J. 236 : [2003 (1) ALL MR 436]. Thirdly, it is the contention on behalf of the petitioner that the trial Court without considering the materials on record in the manner it ought to have been considered and without holding proper inquiry to ascertain whether there was any estate as such left behind to be represented in relation to the suit in question and without considering whether right to sue survives in favour of the respondent owen as being the legal heir of the plaintiff or any right having been assigned on the strength of any document which would entitle the respondent to come on record and continue the proceedings as the plaintiff, the trial Court merely on the assumption that the respondent owen is the legal heir of the deceased plaintiff, allowed the application under Order 22, Rule 3 of the C. P. C.