JUDGMENT 1. This civil misc. appeal under Order 43 Rule 1(k) C.P.C. is directed against the order dated 15.12.98 passed by learned Additional District Judge No. 3, Jodhpur in Civil Original Case No. 48/98 filed by the appellant-plaintiff against the respondent-defendant for arrears of rent and ejectment of the disputed shops. 2. Originally a suit was filed by the appellant-plaintiff against the respondent-defendant. However, during the pendency of the suit, one Keshav Singh Shankhla, father of the plaintiff-appellant filed an application under Order 1 Rule 10 C.P.C. for impleading him as a party-defendant in the suit on the ground that he is landlord of the disputed shops. Learned trial court allowed the application and impleaded Keshav Singh as defendant No. 2. It is said that Keshav Singh defendant No. 2 expired on 5.9.97. An application under Order 22 Rule 4 read with Rule 9 and Section 151 C.P.C. was filed by the plaintiff- appellant for bringing on record the legal representatives of the deceased defendant No. 2, Keshav Singh on 30.7.98, much after expiry of period of limitation. The trial court vide impugned order dated 15.8.98 dismissed the application as also dismissed the suit as abated. Aggrieved by the order impugned, the plaintiff-appellant has filed the present appeal. 3. I have heard learned counsel for the parties. Perused the impugned order. 4. The learned counsel for the appellant submits that though the application for bringing on record legal representatives, was filed much after expiry of period of limitation as envisaged in the Civil Procedure Code, but the trial court fell in error in dismissing the suit as a whole as having abated. At the beat, the suit could have been abated against the deceased-defendant. He relied on a judgment in Momanshah Budhal Shah and others v. Rajalmal and others AIR 1933 Sind 384 , wherein it has been held that when a suit has abated against one of the defendants, who is dead and his legal representative not being brought on record, the Court is at once called upon to consider whether all the necessary parties to the suit are before it. If yes, the Court proceeds with the suit. If no, the Court dismisses it on that ground. If yes, the Court proceeds with the suit. If no, the Court dismisses it on that ground. In determining that question, the Court has to apply its mind to the question whether a suit instituted without the deceased defendant, if alive or not, being made a party to it, is properly constituted or not. If it is properly constituted, it must proceed. He also relied on a judgment of a Division Bench of this Court in Mst. Pemi bai v. Mst. Sankali Bai, 1981 RLW 125 . This Court held that it is well settled that in a case where one of the legal representatives of the deceased appellant or respondent is already on record, even though in another capacity, the appeal will not abate simply because the other legal representatives are there and the application has not been made in time to bring them on record. 5. The learned counsel for the respondent submitted that the trial court was justified in dismissing the suit as having abated as a whole. He contended that after impleadment of defendant No. 2, he had filed written statement before the trial court. It was alleged by deceased defendant No. 2 Keshav Singh that he actually intended to execute a will in favour of wife of his son Dhiraj Singh as he is an old disabled person, therefore, appellant plaintiff who is none else but his daughter was instructed to prepare will in favour of his daughter in law but plaintiff in collusion of her husband Shri Narain Singh got the sale deed document signed without any consideration instead of putting signature on the document of will which he intended to execute. The learned counsel for the respondent, therefore, contended that in these circumstances deceased defendant Keshav Singh was a necessary party to the suit. 6. The learned counsel for the appellant invited my attention to the written statement filed by the respondent wherein in para No. 2, he has admitted the plaintiff- appellant to be landlord. In the same para, at the end, respondent-defendant also admitted that the plaintiff- respondent is landlord. The suit as construed by the plaintiff is that the plaintiff is landlord and respondent-defendant is a tenant of the suit premises. In the same para, at the end, respondent-defendant also admitted that the plaintiff- respondent is landlord. The suit as construed by the plaintiff is that the plaintiff is landlord and respondent-defendant is a tenant of the suit premises. The suit is based on the grounds that the respondent tenant defaulted in payment of monthly rent continuously for a period of six months and claiming bonafide necessity of the appellant landlord. The learned counsel for the appellant contended that the suit as construed, if taken to be in time, then, whether it is a proper suit or whether in absence of deceased defendant No. 2, the suit can proceed as such. 7. From the facts pleaded in the suit filed by the plaintiff-appellant and the written statement of the respondent, it cannot be said that the suit is not properly construed without deceased-defendant No. 2, even if he was alive. 8. In my considered opinion, the trial court fell in error in dismissing the suit as a whole as having abated. At the best, it could have abated against the deceased-defendant Keshav Singh. Consequently, the order impugned is not sustainable and is liable to be quashed and set-aside. 9. In view of the aforesaid discussion, this appeal is allowed and the order impugned dated 15.12.98 dismissing the suit as having abated, a whole is set aside. However, the suit against deceased-defendant No. 2 Keshav Singh stands abated. No order as to costs. The record of the trial court be sent back forthwith and parties are directed to appear before the trial court on 25.2.20Appeal Allowed - Order of dismissal of Suit as having abated Set Aside. *******