Honble GOYAL, J.–Facts giving rise to this second appeal under Section 100 C.P.C. briefly narrated are that respondent plaintiff filed a civil suit against the original tenant Mohd. Adam Kureshi, on 1.8.1975, for eviction and arrears of rent with the averments that the tenant committed default in payment of rent from 1.2.1973 and the suit shop was required by the plaintiff. The defendant in his written statement while admitting his tenancy denied the ground of eviction. Issues were framed and after recording the evidence of the parties, decree of eviction vide judgement dated 10.9.1997 was passed on the ground that requirement of plaintiff was reasonable and bonafide and comparative hardship would be caused to the plaintiff in case decree of eviction is not passed.

(2). First regular Appeal No. 40/97, filed by the original Mohd. Adam Kureshi was dismissed by learned Additional District Judge No. 1, Kota, vide impugned judgment dated 8.7. 2002, on the ground that the appellant-tenant died during the pendency of appeal on 18.12.2001 and his legal heirs being not tenant, under the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (hereinafter referred to as the `Act) are not entitled to any relief and thus this appeal was dismissed as abated. Hence, this second appeal by sons and daughters of the original tenant as his legal-heirs.

(3). I have heard learned counsel for the parties. Before adverting to the submissions, it is necessary to reproduce the provisions with regard to definition of the tenant. Section 3 (vii) (b) of the Act reads as under :-

(vii) "Tenant" means :-

(vii)(b) in the event of death of the person as is referred to in sub-clause (a) his surviving spouse son daughter and other heir in accordance with the personal law applicable to him who had been, in purposes ordinarily residing out for residential purposes ordinarily residing and in the case of premises purposes ordinary carrying on business with him in such premises as member of his family upto his death.

(4). Learned counsel for the appellants submitted that the appellants are legal representatives of the deceased tenant as defined under Section 2 (11) of the code of Civil Procedure, 1908. According Section 2(11) of the Code, "Legal representative" means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or issued in a representative character the person on whom the estate devolves on the death of the party so suing or sued. It was next submitted that on making an application on behalf of the legal representative of the deceased tenant, it was duty of the first appellate court to refer this question to be determined by the trial court as provided under Order XXII, Rr. 5 C.P.C. According to him, the property can not kept in abeyance upon the death of the person and the moment the tenant dies his sons and daughters get interest in the suit property and thus the appellants were/are entitled to continue in possession of the suit shop as legal representatives of the deceased tenant. He relied upon Smt. Ramjeevni & Ors. vs. Smt. Narati Bai (1), wherein Full Bench of this Court held that clause (b)of definition of `tenant contained in sub-sec. (vii) of S. 3, of the Act means that the protection of the Act is available to the spouse, son and daughter of deceased statutory tenant and the said heirs are not required to fulfill the further condition laid down in the latter part of the said clause, viz that in case of premises leased out for residential purposes they must have been ordinarily residing with the deceased statutory tenant in said premises upto his death and in the case of premises leased out for commercial or business purposes they must have been ordinarily carrying on business with the deceased statutory tenant in such premises upto his death. Two other judgments of this Court reported in Govind Narain vs. Bodh Raj and others (2), and Smt. Kanc

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