[1.0] As common question of law and facts arise and are between the same parties and arising out of the common order passed by the learned trial Court below Exh.1 and Exh.110 in Civil Suit No.157/1983, Revision Application as well as Special Civil Application are heard and decided together and disposed of by this common judgment and order. [2.0] Civil Revision Application has been preferred by the applicant herein – original plaintiff to quash and set aside the order passed by the learned trial Court below Exh.1 in Civil Suit No.157/1983 in dismissing the aforesaid suit as having been abated under Order 22 Rule 4(3) and Section 151 of the Code of Civil Procedure.
[2.1] It is required to be noted that as such the application Exh.110 was preferred only for the purpose of amending the plaint as well as to join the subsequent purchaser as a party defendant and considering the earlier order passed by the learned trial Court below Exh.77 permitting the original plaintiff to bring the heirs on record which has not been challenged by the heirs of original defendant – original owner, the order passed by the learned trial Court dismissing the suit as having been abated cannot be sustained and the same deserves to be quashed and set aside.
[2.2] Special Civil Application No.13947/2003 has been preferred by the petitioner – original plaintiff to quash and set aside the impugned order passed by the learned trial Court below Exh.110 in Civil Suit No.157/1983 by which the learned trial Court has rejected the said application submitted by the petitioner – original plaintiff permitting him to join the subsequent purchaser as party defendant and consequently to amend the plaint has been rejected.
[3.0] Shri Mithani, learned advocate appearing on behalf of the applicant has vehemently submitted that the learned trial Court has materially erred in dismissing the application Exh.110 as well as in dismissing the suit as having been abated. It is submitted that as such application Exh.110 was preferred by the petitioner – original plaintiff only for the purpose of amending the plaint as well as to join the subsequent purchaser as a party defendant and despite the same, the learned trial Court has not only dismissed the said application Exh.110, but has dismissed the suit as having been abated and has passed the order below application Exh.1. It is submitted that as such earlier the application was submitted by the petitioner – plaintiff to bring the heirs of the original plaintiff on record and as such the learned trial Court earlier allowed the application Exh.77 permitting the original plaintiff to bring the heirs on record. Therefore, the learned trial Court ought not to have allowed the application Exh.1 and ought not to have dismissed the suit has having been abated.
[4.0] Shri Patel, learned advocate appearing on behalf of the contesting respondent – third party – subsequent purchaser has submitted that as such at the relevant time when application Exh.77 was submitted and thereafter granted by the learned trial Court, there was no application for condonation submitted by the plaintiff. It is further submitted that even the application Exh.78 which was submitted by the plaintiff for setting aside the abatement of the suit was not pressed and therefore, the learned trial Court has not committed any error and/or illegality in dismissing the suit as having been abated.
[5.0] Heard the learned advocates appearing for respective parties at length. At the outset, it is required to be noted that earlier the original plaintiff submitted the application Exh.77 for permitting the original plaintiff to bring the heirs of the original defendant on record and consequently the heirs of the original defendant were brought on record. It appears that simultaneously at the time of submitting the application Exh.77, the plaintiff submitted the application Exh.78 for an appropriate order of setting aside the abatement. However, in view of the order passed below Exh.77, the plaintiff withdrew the aforesaid application Exh.78. It is required to be noted that the order passed by the learned trial Court below Exh.77 has attained finality as the same has not been challenged by the heirs of the original defendant. That thereafter as in the meantime the disputed property in question came to be transferred in favour of respondent No.2 herein, the plaintiff submitted the application Exh.110 permitting the plaintiff to join the subsequent purchaser as party defendant and consequently permitting the plaintiff to amend the plaint. By the impugned common order, the learned Judge has not only dismissed the application Exh.110 rejecting the application submitted by the plaintiff for permitting him to join the subsequent purchaser as party defendant and to amend the plaint, the learned Judge has dismissed the suit as having been abated mainly and solely on the ground that when the earlier order was passed below Exh.77, there was no application for condonation of delay and therefore, the heirs would not have been permitted to brought on record. It is required to be noted that it was nobody's request to dismiss the suit as having been abated. Even otherwise the learned Judge could not have reviewed the order passed by his predecessor below Exh.77. Under the circumstances, the order passed by the learned trial Court below Exh.1 dismissing the suit as having been abated deserves to be quashed and set aside.
[5.1] Now, so far as the impugned order passed by the learned trial Court below Exh.110 is concerned, considering the fact that respondent No.2 herein – third party – subsequent purchaser has purchased the disputed property in question during the pendency of the litigation/suit and to avoid any further multiplicity of proceedings, the order passed by the learned trial Court below Exh.110 deserves to be quashed and set aside and the said application is to be allowed permitting the plaintiff to amend the suit as prayed for and permitting him to join respondent No.2 herein – subsequent purchaser as party defendant.
[6.0] In view of the above and for the reasons stated above, the Civil Revision Application as well as Special Civil Application succeed and the order passed by the learned trial Court below Exh.1 and Exh.110 in Civil Suit No.157/2003, is hereby quashed and set aside and the application submitted by the plaintiff below Exh.110 permitting him to amend the plaint and to join respondent No.2 herein – subsequent purchaser as a defendant is hereby allowed and respondent No.2 herein is permitted to be impleaded as defendant in the aforesaid suit. However, it is observed that solely on granting the application Exh.77 permitting the plaintiff to bring the heirs of the defendant on record, whether the suit has been abated or not, the said question is kept open which be considered by the learned trial Court in accordance with law and on merits and as and when such an issue is raised. It will also be open for the petitioner – plaintiff to submit appropriate application for interim injunction against the third party, who is now joined as party defendant and the same be considered in accordance with law and on merits. So as to enable the petitioner to submit application against the third party, who is now to be joined as party defendant, the order of statusquo granted by this Court is directed to continued for a period of four weeks from today. However, it is observed that the learned trial Court to decide and dispose of the said application, if any, for interim injunction against the third party in accordance with law and on merits without in anyway being influenced by the continuation of the statusquo. In the facts and circumstances of the case, as the suit is of the year 1993, learned trial Court is directed to expedite the hearing of the suit also. Rule is made absolute to the aforesaid extent in both Civil Revision Application as well as the Special Civil Application. No cost.
(M.R. Shah, J.) *menon