1. Leave to amend the prayer clause.
2. Mr.
S. K. Patel, learned advocate for the applicants has assailed the impugned order passed by the Additional Civil Judge and JMFC, Modasa by submitting that in the facts of the present case, the sole plaintiff had expired on 14.12.2010; under the provisions of Order XXII rule 3(1), an application for bringing heirs of the deceased plaintiff is required to be made and if no application is made within the time limited by law, under sub-rule (2) thereof the suit shall abate so far as the deceased plaintiff is concerned. Referring to Article 120 of the Schedule to the Limitation Act, it was pointed out that the prescribed period of limitation to have the legal representative of a deceased plaintiff made a party is 90 days from the date of death of the plaintiff. It was submitted that in the facts of the present case, since no application was made under sub-rule (1) of rule 3, the suit stood abated by operation of law. It was submitted that under the circumstances, there was no suit pending on the date when the application Exhibit-165 was made by the respondents herein on 30.6.2011. It was submitted that in the circumstances, unless the abatement was set aside and the suit was restored, there was no question of bringing on record the heirs and legal representatives of the deceased plaintiff. It was accordingly submitted that the impugned order is contrary to the provisions of Order XXII rule 3 inasmuch as without setting aside the abatement, the learned Judge has permitted the heirs and legal representatives of the deceased plaintiff to be brought on record by carrying out necessary amendment in the cause title. In support of his submissions, Mr.Patel placed reliance upon the decision of the Supreme Court in the case of Madan Naik v. Hansubala Devi, AIR 1983 SC 676 and more particularly to the contents of paragraph 5 thereof.
3. In the light of the submissions advanced by the learned advocate for the applicants, issue Notice returnable on 13.2.2012.
4. By way of ad-interim relief, further proceedings of Regular Civil Suit No.78 of 2001 pending in the court of learned Additional Civil Judge and JMFC, Modasa are hereby stayed.
(HARSHA DEVANI, J.) (vipul) Top