Hon'ble Dr. KOTHARI, J.—This appeal was filed by the tenant Tribhuvan Dutt being aggreived of the order dated 1.4.2008 passed by the Addl. District Judge No.1, Jodhpur rejecting the application filed by the legal representatives of appellant defendant under Order 21 Rule 4 CPC read with Section 3 (vii) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950.

2. The learned trial court has passed the eviction decree by allowing civil suit no. 130/94 (Jai Narain vs. Tribhuvan Dutt) on 1.12.2005. The defendant tenant preferred the appeal before the learned first appellate court namely civil appeal no.39/2006. During the pendency of the said appeal, the defendant tenant Tribhuvan Dutt expired on 29/5/2007 and upon his death his son Om Prakash filed the said application under Order 22 Rule 4 CPC on 17/7/2007 seeking to bring on record the legal representatives of late Tribhuvan Dutt namely his wife Smt. Tulsi Devi and his three sons Om Prakash, Jagdish Prakash and Jai Prakash. The plaintiff respondent filed reply to the said application contesting the same on 3/8/2007 and after hearing both the parties the learned first appellate court rejected the said application under Order 22 Rule 4 CPC read with Section 3 (vii) (b) of the Rent Control Act, 1950. Being aggrieved by the said order passed by the learned first appellate court on 1.8.2008, said legal representatives – applicants have approached this Court by way of present misc. appeal.

3. Learned counsel for the appellants Mr. K.S. Rathore vehemently submitted that the learned appellate court has erred in rejecting the said application under Order 22 Rule 4 read with Section 3 (vii) (b) of the Act of 1950 as the wife and three sons of defendant tenant Tribhuvan Dutt squarely fell within the definition of legal representatives as defined under Section 2(11) CPC and since the tenancy is a heritable right which devolved upon these four legal representatives of the deceased appellant tenant Tribhuvan Dutt, they were entitled to be brought on record and were entitled to same protection under the Rent Control Act, 1950 as the appellant defendant was and, therefore, the present appeal deserves to be allowed and the impugned order dated 1.4.2008 deserves to be quashed and set aside.

4. He relied upon the following judgments in support of his contentions:

(1) Smt.Ramjeevani vs. Narati Bai – 1991(1) R.L.W. 222

(2) Tara Chand & Anr. vs. Ram Prasad – 1990 UJ (S.C.) 157

(3) Government of Karnataka & Ors. Vs Gowramma – 2008 (1) SRJ 227

(4) M/s Kanhiya Singh Santok Singh & Ors. vs. Kartar Singh – AIR 2009 SC 1600

(5) Vinay Kr.Khambate vs. Vinay Kr.Aggarwal & Ors – AIR 2007 SC 2436

(6) Mahendra Kumar vs. Lalchand & Anr. - AIR 2001 SC 807 = RLW 2001(1) SC 156

(7) Kedar Lal & Ors. vs. L.Rs. Of Ram Dayal – 2007 (4) RLW2848

5. On the side opposite, Mr. H.R.Soni, learned counsel for the respondent plaintiff vehemently submitted that the present appeal has no merit as admittedly none of the so called legal representatives namely wife and the three sons of the appellant defendant tenant Tribhuvan Dutt were carrying on the business in the suit premises which was commercial in nature upto the date of his death and, therefore, they did not fall within the amended provision of Section 3 (vii) (b) of the Act of 1950 and, therefore, they could not be brought on record and the learned first appellate court was perfectly justified in rejecting the said application under Order 22 Rule 4 CPC.

6. He drew the attention of this Court towards the statement of appellant defendant himself dated 18/10/2005 as DW.1 before the learned trial court reproduced at page 5 of the impugned order, in which the said appellant defendant Tribhuvan Dutt himself stated before the Court that he has three sons and no daughters and none of the sons was working with him in his business as Om Prakash was working in a factory, Jagdish Prakash was doing his own business in Mumbai and Jai Prakash was serving in a color company in Bhilw