JUDGMENT :

N.J. Jamadar, J.

1. Rule. Rule made returnable forthwith and, with the consent of the learned counsels for the parties, the petition is heard finally.

2. This petition under Article 227 of the Constitution of India calls in question the legality, propriety and correctness of the order dated 22nd September 2016 passed by the learned 3rd Joint Civil Judge, Senior Division, Nashik on an application (Exh. 55) purported to be under Order I Rule 10 coupled with Order VI Rule 17 of Code of Civil Procedure, 1908 ('the Code') to bring on record the legal representatives of the defendant No. 1, who had died before the institution of the suit, being Regular Civil Suit No. 8 of 2013; whereby the application came to be rejected.

3. The petition arises in the backdrop of the following facts:

(a) The defendant No. 1-Sou. Raj Beri was the owner of the land bearing Plot No. 19, out of Survey No. 55/4 situated at Mouje Gangapur, Taluka/District Nashik ('the suit property'). The defendant No. 1 had agreed to sell the suit property to the plaintiff under an agreement for sale, dated 17th December 1997. The plaintiff had paid the entire consideration of Rs. 51,202/- to the defendant No. 1. However, the sale deed was not executed. In the meanwhile, the defendant No. 2, claiming to be the power of attorney of the defendant No. 1, executed a conveyance in favour of the defendant No. 3 on 6th July 2004 and professed to sell the suit property to the defendant No. 3. The plaintiff, thus, instituted the suit seeking specific performance of the agreement for sale, dated 17th December 1997.

(b) The defendant No. 1 could not be served with the suit summons through the usual mode. Substituted service, by way of paper publication, was effected and the suit proceeded ex-parte against the defendant No. 1. The defendant Nos. 2 and 3 resisted the suit by filing the written statement. The issues were settled.

(c) When the matter was listed for recording the evidence, the plaintiff made further enquiries and it transpired that the defendant No. 1 had died. The plaintiff, thus, took out an application (Exh. 55) seeking to implead the legal representative of the deceased defendant No. 1, purportedly under Order I Rule 10 and Order VI Rule 17 of the Code. The defendant No. 3 resisted the application by filing say and objection. The defendant No. 3 contended that the defendant No. 1 had died on 25th November 2010, much before institution of the suit; in the year 2013. The suit, thus, stood abated against the defendant No. 1. The plaintiff had not sought setting aside the abatement and permission to bring the legal representatives of the defendant No. 1, on record. Hence, the application was misconceived.

(d) The learned Civil Judge, Senior Division was persuaded to reject the application, holding inter-alia, that the suit against the defendant No. 1 stood abated. The plaintiff had not sought condonation of delay in seeking setting aside the abatement and bringing legal representatives of the defendant No. 1, on record. Thus, the application was untenable. It was further observed that the issues having been framed and the suit having been posted for recording evidence, the interdict contained in the Proviso to Rule 17 of the Order VI of the Code would also come into play, and for want of due diligence, even the proposed amendment cannot be allowed by invoking the general power of amendment. Being aggrieved by and dissatisfied with the impugned order, the petitioner/plaintiff has invoked the writ jurisdiction of this Court.

4. I have heard Ms. Aditi Naikare, the learned counsel for the petitioner, and Ms. Divya Parab, the learned counsel for the respondent Nos. 2 to 4.

5. Ms. Naikare would urge that the learned Civil Judge totally misconstrued the nature of the application. The learned Civil Judge, according to Ms. Naikare, committed a manifest error in applying the principles envisaged by Order XXII of the Code. Since the defendant No. 1 had died much before the insti