ORDER :

1. By way of the present writ-petition, the petitioner herein is aggrieved by the impugned order dated 22.11.2022 (Annexure-A) passed by the Principal Senior Civil Judge, Botad on application below Exh.53 and Exh.54 in Regular Civil Suit No. 229 of 2015.

2. The said applications came to be filed by the original plaintiff for bringing the legal heirs of respondent - defendant no.1 – Savjibhai Vitthalbhai and respondent - defendant no.6 – Lilaben Vithhalbhai who expired on 20.11.2019 and 08.12.2021 respectively, pending the suit proceedings.

3. The concerned Court by the impugned order dated 22.11.2022 allowed the application for bringing the legal heirs of deceased respondent nos. 1 and 6 respectively.

4. Being aggrieved by the order permitting the legal heirs of the respondent nos. 1 and 6 respectively on record, the writ-petitioner has approached this Court for quashing and setting aside the said order passed by the concerned Court on the ground that the plaintiff was required to prefer an application seeking condonation of delay in bringing the legal heirs on record and that the Suit stood abated qua the respondent nos. 1 and 6, and therefore, an application seeking setting aside the abatement was also required to be filed by the plaintiff.

5. During the course of hearing, Mr. Pahwa, learned advocate appearing for the writ-petitioner has placed on record the judgment and order dated 14.07.2022 passed in Special Civil Application No. 3964 of 2018 arising out of the same Regular Civil Suit No. 229 of 2015, wherein, the legal heirs of the respondent nos. 1 and 6 were permitted to be brought on record, by an order dated 06.01.2022.

6. Mr. Pahwa, learned advocate has relied upon the decision reported in the case of Deepak Verma v/s. Daya Nand reported in 2019 SCC Online Del 8591.

7. The concerned Court while passing the order impugned dated 22.11.2022 below Exh.53 and 54, considered the following aspects, while allowing the application for bringing the legal heirs on record, which reads thus :

“2. As the respondent No.1 and 6 have died, the present application for the plaintiff under Order 23 Rule 3 of C.P.C. is submitted to join their heirs as a party. Since the heirs of the respondent No.1 and 6 have not been joined as a party in time, an application of Exhibit-54 for the respondent No.3 is submitted requesting to abate the present suit against the respondent No.1 and 6. The plaintiff has submitted its reply vide Exhibit-55 to state that, Civil Application No.3964/2018 was filed in the Gujarat High Court against the order of Exhibit-48 and the High Court ordered to stay the proceeding and joined the heirs of the deceased in the proceeding of the Gujarat High Court. The Gujarat High Court passed the final order on 14/07/2022. Thereafter on the first hearing, the application has been submitted to this Court. Therefore, as the Gujarat High Court has issued a stay, no procedure to join the heirs was carried out in this Court and therefore, there does not remain a question of condonation of delay or abatement and therefore, it has been prayed to reject the application of Exhibit-54.

7. Upon considering the application, record and submissions, the present suit has arisen between the plaintiff and respondent regarding share in ancestral property. It is undisputed fact that aggrieved with the order vide Exh-48 related to the application as to who will cross-examine the examination of chief of the plaintiff vide Exh-43, the respondent no. 1 to 3 filed Civil Application no.3964/2018 before the Hon'ble Gujarat High Court, wherein stay on proceeding was ordered on 02/05/2018 by the Hon'ble Gujarat High Court till final order. Thereafter, the aforesaid stay was vacated as final order was passed by the Hon'ble Gujarat High Court on 14/07/2022. Further, in the application vide Exh-54, respondent no.3 in this case has stated that he joined the heirs of respondent no.1 in the proceeding of Hon'ble Gujarat High Court. Thus, upon considering the s