1. Leave to amend is granted.
2. Challenge in this petition is to the order of learned 6th Additional Senior Civil Judge, Surat passed on 20.7.2011 below Exh.17 in Special Civil Suit No.244 of 1997, whereby the application made by the present petitioner for joining heirs of the defendant No.2 has been rejected.
3. Learned advocate Mr. S.P.Majmudar appearing for the petitioner urges that the application was moved within 90 days from the date of knowledge acquired by the petitioner about the death of defendant No.1. The Court, however, has dismissed the application for want of requisite details in the petition and that has prejudiced the right of the petitioner.
4. Learned advocates for the respondents also have been heard. It is agreed by the learned advocate for the petitioner that the application moved before the trial Court was vague and it would not cull out from the application as to what amount of delay had been caused in preferring such application. The Court below naturally would not be in a position to condone the same nor opine on the merits of the application. To cut the issue short as the learned advocates for the parties herein have agreed to challenge the application as that may be moved afresh by the petitioner on merit before the trial Court, the order impugned is set aside permitting the petitioner to move an application with precise period of delay in preferring such an application and both the sides will be at liberty to contest it on merit.
5. The application shall be moved within 1 week from the date of receipt of this order which shall be decided by the Court below after hearing both the sides without being influenced by any of the observations made hereinbelow. This petition stands disposed of accordingly.
Direct service permitted.
sudhir (Ms. Sonia Gokani, J. )