1. Being aggrieved by the order passed by the Trial Court dated 08.02.2012 below Exh.112, denying the present petitioner's request of impleading heirs of Amrutbhai Laxmidas, defendant No.1, this petition is preferred.
2. Learned advocate for the petitioner submits that though the Court has rejected her application Exh.112, merely on the ground that there was no application made for setting aside the abatement, as the person had died on 24.05.1988 and legal heirs and representatives have not been impleaded within stipulated time.
3. The apprehension of the learned counsel for the petitioner is that if this order for setting aside the abatement is not quashed, the Court below may not entertain her request, if placed in the form of application for setting aside the abatement.
4. The petitioner herein had given an application for impleading heirs and legal representatives of the deceased defendant No.1 after nearly about 12 years, without moving any application for setting aside abatement of the suit. Such application of impledement was to be moved within stipulated period of time i.e. 90 days. The Court, therefore, was justified in not allowing such application of impledement of the petitioner without any request of setting aside abatement which would be automatic.
5. The petitioner herein has preferred suit for partition and in such event, it is urged that the heirs and legal representatives of the defendant no.1 would be utmost essential. The petitioner requests to permit moving an application for setting aside abatement, petitioner is at liberty to move such an application afresh for setting aside the abatement for the Court to decide the same on its own merits.
6. However, in absence of any application for setting aside abatement, the Court was justified in not directly impleading the parties, who are the heirs and legal representatives of the defendant No.1.
7. Petition stands dismissed accordingly.
(Ms.SONIA GOKANI, J.) MEHUL Top