1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R S.B. CIVIL WRIT PETITION NO.3281/2008 (Chelaram through his LR's Vs. Vaidhya Shri Vallabh Shastri & Ors.) Date of order : 24.9.2008 P R E S E N T HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS Mr. R.K. Thanvi, for the petitioners. Mr. Prabhat Ojha, for the respondents. Heard learned counsel for the parties. A suit was filed by the non-petitioners against the petitioners before the Munsif Judicial Magistrate, Barmer for eviction from the shop in question on the basis of bonafide necessity. The suit was decreed in favour of the respondents and against late Chela Ram. Against the said judgment and decree passed by trial Court, an appeal was preferred by late Chela Ram. During the pendency of the appeal, Chela Ram died. Thereafter, an application was filed under Order 22 Rule 3 CPC. In the reply to the said application, it is submitted by non-petitioners that 2 they have no objection for treating the applicants as LR's of late Chela Ram but it is refuted that they have no right to agitate the appeal as legal representatives of late Chela Ram. Upon filing such application, although the petitioners were taken on record as LR's of late Chela Ram but it is observed in the order dated 5.11.2007 that while reserving the right of respondents with regard to raising ground for not to continue the appeal by the legal representatives of late Chela Ram. The application was allowed. Thereafter, an application was filed by the petitioners under Order 14 Rule 5 CPC because as per order 22 Rule 5, the trial court is required to determine the said issue with regard to entitlement of pursuing appeal by the legal representatives. The application filed by the petitioners for framing issue under Order 14 Rule 5 CPC was rejected vide order dated 16.4.2008. Against which, the instant writ petition has been preferred by the petitioners. During the course of arguments, it is submitted by learned counsel for the respondents that in reply it is admitted by respondents that they have no objection if applicants will be taken on record as legal representatives of Late Chela Ram but it was agitated that they have no right to continue the appeal and the said ground will be raised by the respondents at the time of final arguments. 3 Learned Appellate Court while accepting the reply filed by the non-petitioners, passed an order on 5.11.2007. In my opinion, once the non-petitioners have accepted in their reply that petitioners may be taken on record as legal representatives of late Chela Ram then all the rights are created to the legal representatives are available to the legal representatives of deceased. There is no question of saying that they have no right to agitate the appeal filed by the appellants. In this view of the matter, in my opinion, the applicants are entitled to continue the appeal filed by late Chela Ram for all purposes. In this view of the matter, no adjudication is required by this Court for impugned order dated 16.4.2008. The writ petition is disposed of in above terms. (GOPAL KRISHAN VYAS), J. arun