ORAL ORDER

However, notice was duly served to the respondents, nobody is appeared to contest this petition.

By way of preferring this petition, petitioners have challenged the order dated 2.1.2019 passed below application Exh. 45 by the learned Principal Civil Judge, Ranpur in Regular Civil Suit No. 93 of 2016 (Old Regular Civil Suit No. 23 of 2013) preferred by the respondent No. 1 for joining the present petitioners as the heirs of the deceased Original Defendant No. 2 without seeking any prayer for setting aside the abatement qua the deceased original defendant No. 2 and without filling any separate application or seeking relief for condonation of delay for the same.

The brief facts leading to the present case are as under:-

That, the respondent No. 1 preferred a Civil Suit, being Regular Civil Suit No. 83 of 2013, against the respondent No. 2 on 19-07-2013 and predecessor of the petitioners praying for cancellation of sale-deed, declaration and permanent injunction in respect of the land situated at Survey No. 3567/43 of Village Ranpur, Taluka Ranpur, District Ahmedabad. That, respondent No. 1 preferred an application below exhibit 5 praying for interim injunction against predecessors of the petitioners, however, the Civil Court, after hearing the parties, rejected the said application below Exhibit 5 preferred by the respondent No. 1 on 21-10-2014. That, pending present suit, upon death of the predecessor of the present petitioners on 1-9-2015, the learned advocate for the predecessor of the present petitioners filed a pursis vide Exh. 25, on 11-02-2016 in the Suit disclosing the factum of the death of the original defendant No. 2 - Bhupatbhai Shivabhai Chhaliya. Thereafter, upon constitution and the establishment of Civil Court at Ranpur such suit came to be transferred to the Court at Ranpur in the year 2016 and the same was registered and renumbered as Regular Civil Suit No. 93 of 2016. Thereafter, despite the pursis filed by the advocate of the original defendant No. 2 on 11-02-2016 and despite having knowledge of the factum of the death of the original defendant No.

2, the Respondent No. 1 – plaintiff, after lapse of about two and half years, preferred an application below Exhibit 45 for joining the present petitioners as heirs and legal representatives of the deceased Original defendant No. 2, without seeking any prayer for setting aside abatement qua the deceased defendant No. 2 and without filing separate application or praying any relief to condone the delay caused in preferring the application, Exh. 45. That, application below Exhibit 45, preferred by the respondent No. 1, the petitioner Nos. 1.1 and 1.4 filed their reply, Exh. 50, on 5-12-2018 contending and objecting the application, Exh. 45, on the ground that no prayer for setting aside abatement and condonation of delay having been prayed for by the respondent No. 1 in the application below Exhibit 45 and therefore, the same should be rejected. That, surprisingly, on 02-01-2019, after hearing the parties, learned trial Court allowed the application below Exhibit 45, preferred by the Respondent No. 1, without assigning any reason or findings in respect of the objections raised by the petitioner Nos. 1.1 and 1.4 in their reply. That, the trial Court has recorded and acknowledged the said objections in the order and further passed an order awarding cost to the petitioners for the delay caused in preferring the application by respondent No.1 below Exhibit 45. Therefore, the present petition.

Heard learned advocate for the petitioners.

Learned advocate for the petitioners submits that trial Court has exercised the jurisdiction not vested upon it by law and has acted illegally with material irregularity in passing the impugned order. That, the trial Court ought to have considered the fact of provision of Order 22, Rule 4 of Civil Procedure Code in respect of the abatement of the proceedings qua the original deceased- defendant No. 2 as admittedly, no application for jo