Sandeep Mehta, J.

By way of this writ petition, the petitioners have approached this Court for assailing order dated 26.11.2012 (Annex.9) passed by learned Additional District Judge, Abu Road in Civil Appeal No.11/2008 rejecting the application submitted on behalf of the petitioners under Order 22, Rule 3 (4) CPC for permitting them to continue the appeal in capacity of the legal heirs of late Smt. Rambha Devi.

2. Facts in brief are that the respondent plaintiff Sudhir Kumar filed a suit for eviction and recovery of due rent against Smt. Rambha Devi, petitioners' mother as well as the petitioners in the Court of learned Civil Judge (J.D.), Abu Road. The suit was decreed ex-parte by judgment dated 6.1.2000. Smt. Rambha Devi filed an application under Order 9, Rule 13 CPC for setting aside ex-parte judgment which was rejected by order dated 20.5.2008. Execution proceedings were initiated by the respondent which are still pending. Being aggrieved by the rejection of her application for setting aside the ex-parte proceedings, Smt. Rambha Devi filed an appeal in the Court of learned Additional District Judge, Abu Road. During pendency of the appeal, Smt. Rambha Devi passed away whereupon the petitioners being her legal heirs filed an application under Order 22, Rule 3 (4) CPC for being impleaded as party in place of Smt. Rambha Devi and seeking permission to continue with the appeal. Such application was rejected by the learned trial Court vide order dated 26.11.2012 against which the instant writ petition has been preferred.

3. Shri Richin Surana learned counsel for the petitioners relying upon the Supreme Court judgments in the cases of K. Rudrappa v. Shivappa reported in AIR 2004 SC 4346 and Mithailal Dalsangar Singh & Ors. v. Annabai Devram Kini & Ors. reported in WLC (SC)(Civil) 2003(2) 597, urges that the application for bringing the appellant Rambha Devi's legal representatives on record should not have been dismissed on the ground of insignificant delay of ten days. No separate application for setting aside the abatement of appeal is required to be filed in view of the law laid down by the Hon'ble Supreme Court. He thus urges that the impugned order is grossly bad in the eye of law and also suffers from error apparent on the face of record and thus, should be quashed and set aside.

4. Per contra, Shri M.M. Dhera, learned counsel for the respondent plaintiff vehemently opposes the submissions advanced by the petitioners' counsel. He urges that the petitioners were not living in the same premises with the tenant Rambha Devi. No application was filed for setting aside of abatement of the appeal and as such, the trial Court was perfectly justified in rejecting the application preferred on behalf of the petitioners. In support of his contention, Shri Dhera relied on the following judgments and contends that the writ petition is liable to be rejected :-

(1) Kamla Bazari v. Smt. Chanda Bai and Ors. reported in 2012 (1) WLN 616 (Raj.),

(2) LRs of Tribhuvan v. Jai Narayan reported in AIR 2009 Raj. 174,

(3) Ragho Singh v. Mohan Singh reported in (2001) 9 SCC 717

(4) State of Punjab v. Nathuram reported in AIR 1962 SC 89

(5) Ch. Surat Singh v. Manohar Lal reported in AIR 1971 SC 240

(6) State of Rajasthan v. M/s. Choudhary Construction reported in AIR 1998 Raj. 123.

5. I have considered the arguments advanced at the Bar and have gone through the material available on record.

6. The trial Court rejected the application submitted on behalf of the petitioners under Order 22, Rule 3 (4) CPC on two grounds, (1) that it was preferred after a delay of 10 days and was not supported by any application for condonation of delay and (2) that it was not supported by an affidavit of the petitioners. The trial Court also held that the petitioners were party respondents before the trial Court but they did not file any independent appeal to challenge the judgment cum decree passed by the Court below and as such the judgment had became final to their ext