1. This revision petition has been directed against the order of Civil Judge (J.D.), Barmer dated 28th March, 2001 in Civil Original Case No. 58/93 "Kumari Lata v. Totamal" by which the application moved by the legal representatives of the defendant No. 2 Panjumal under Order 22 Rule 4(2) Civil Procedure Code was rejected. On the death of defendant No. 2 Panjumal, his legal representatives filed proposed written statement under Order 22 Rule 4(2) Civil Procedure Code alleging therein that after the death of Panjumal, they being the legal representatives have been impleaded as such. Therefore, they have every right to make any defence in the suit and to file written statement. The learned trial Court relying on the following decisions of this court, rejected the application:-

(1) Rameshwarlal & Anr. v. Raghunath Das & Ors., WLN 1976 (UC) 387 (decided on 11.10.1976).

(2) Rameshwar Prasad v. Pratap Singh & Ors., RLR 1989 (2) 273 (decided on 20.7.1988).

2. It was argued by Mr. S.D. Vyas, learned counsel for the petitioner relying on the judgment of the Delhi High Court in Saiyed Sirajul Hasan v. Syed Murtaza Ali Khan Bahadur & Ors., AIR 1992 Delhi 162 that legal representatives can file written statement under Order 22 Rule 4(2) Civil Procedure Code as of right and Order 8 Rule 9 has no application in this case. There is no necessity for the legal representatives to take leave of the Court and their written statement has to be taken note of by the Court. He can raise any defence which is appropriate to his character as legal representative of the deceased defendant and if he chooses to raise any such defence, he being "entitled" to, do so, the Court has no discretion to stop or debar him from so doing. It was argued by the learned counsel that Order 8 Rule 9 has no application when a written statement is filed by the legal representative of the deceased party under Order 22 Rule 5 or Order 6 Rule 7 and is independent of Order 8 Rule 9. It allows a person made a party under Order 22 Rule 4 to make "any defence" the only limitation being that the defence so made must be "appropriate" to his character as legal representative of deceased defendant. The learned counsel relying on the judgment of the Hon'ble Apex Court in Vidyawati v. Man Mohan & Ors., 1995 (3) RRR 504 (SC) : 1995 DNJ (SC) 229, it was argued that at the petitioner wife of the deceased defendant has right to implead herself or file independent suit to defend her own rights.

3. Mr. Manish Shishodia, learned counsel for the respondent relying on the decision of the Hon'ble Supreme Court in Gajraj v. Sudha & Ors., 1999 (3) SCC 109 argued that the legal representative has no right to file written statement taking hostile defence to the original defendant. He has supported the order of the learned trial Court and argued that there is no jurisdictional error in the order and, if it is allowed to stand, no failure of justice would occasion or irreparable loss would be caused to the defendant.

4. The point for decision before this Court is whether the legal representatives substituted for the original defendant No. 2 under Order 22 Rule 4(2) Civil Procedure Code are entitled to file a separate written statement independently as of right ?

5. The suit for eviction has been filed by the plaintiff on the ground of sub-letting him on reasonable and bona-fide necessity of the plaintiff. The provisions of Order 22 are relevant, which are extracted as follows :

"R. 1. No abatement by party's death, if right to sue survives - The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives.

R. 2. Procedure where one of several plaintiffs or defendants dies and right to sue survives - Where there are more plaintiffs or defendants than one, and any of them dies, and where the right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the Court shall cause an entry to that e