ORAL JUDGMENT

Heard Mr. Purohit, learned advocate for the petitioner, and Mr. Patel, learned advocate for the respondent No.7.

2. In present petition, the petitioner has prayed, inter alia, that:-

“10(A) to allow this petition with costs;

(B) to quash and set aside the order dated 3.9.2011 passed on application Ex.31 in Civil Suit No.320/2008 of the learned 7th Additional Senior Civil Judge, Rajkot;

(C) to allow the application Ex.31 made in Regular Civil Suit No.320/2008 by permitting to implead the respondents No.7 and 8 as party defendants No.7 and 8 in the said suit;”

3. So far as the relevant facts are concerned, it has emerged from the record and submissions by learned advocates for the petitioner and the respondent No.7 that the defendant No.7 in Regular Civil Suit No.320 of 2008 purchased certain properties in March-1995.

3.1 The said defendant No.7 of the suit died in May-1998.

Despite such fact, the said purchaser of the property in March, 1995 (who died in May 1998) was impleaded as defendant No.7 in the said Suit No.320 of 2008.

3.2 The said suit being RCS No.320/2008 came to be filed on or around 24.6.2008, i.e. almost 13 years after the sale was executed and about ten years after the said purchaser of the property died in May, 1998, impleading the said purchaser of property as defendant No.7 in the suit.

3.3 From the record, it has also emerged that the said suit being RCS No.320/2008 is filed by the petitioner seeking cancellation of a sale deed whereby certain property came to be sold to the original defendant No.7 in the suit.

3.4 The above-mentioned details, give out that at the time when the suit was filed, it was filed against a dead person so far as the defendant No.7 of the suit is concerned.

3.5 In that view of the matter, the suit was treated as abated qua defendant No.7 vide order dated 31.3.2009.

3.6 Having regard to the said fact, the plaintiff moved an application dated 20.5.2009 requesting the learned trial Court to set aside the abatement qua the defendant No.7 and to join the heirs of deceased defendant No.7.

3.7 The said application came to be registered as application Exh.14.

The learned trial Court has summarized the subject and scope of the said application Exh.14 in the order in following terms:-

“.... According to plaintiff, the defendant No.7 expired on 31-01-2009 as per the endorsement of bailiff on summons. According to plaintiff, the suit against defendant No.7 is abated and therefore, the plaintiff has filed present application to set aside the abatement and to join the heirs of deceased defendant No.7 as parties.”

3.8 The learned trial Court, after considering the facts and circumstances of the case, rejected the said application Exh.14 vide order dated 9.9.2009.

3.9 It is pertinent that the plaintiffs did not challenge the said order dated 9.9.2009.

3.10 Sometime after the said application Exh.14 was rejected, the plaintiffs filed another application dated 15.11.2010 i.e. after delay of about 14 months after the order dated 9.9.2009 and almost 2 years and 5 months after the suit was filed.

By the said application dated 15.11.2010, the plaintiffs requested the learned trial Court to implead two persons named in the application as party defendant in the suit claiming that the said two persons are the heirs of the original defendant No.7 (the person qua whom the suit is treated as abated).

The said application came to be registered as application Exh.31.

3.11 The two persons whose names were mentioned in the application Exh.31 (who are impleaded as respondent Nos.7 and 8 in present petition) are the same persons (i.e. heirs of said/original defendant No.7) whose names were mentioned in/for whose impleadment previous application Exh.14 was earlier moved by the plaintiffs (which came to be dismissed vide order dated 9.9.2009) filed reply /

objection against the application Exh.31.

3.12 After considering the application and the reply / objections by the proposed defendants, i.e. present respondent Nos.7 and 8, t