JUDGMENT : 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. 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 extent. So far as the question regarding the delay is concerned, Hon'ble Supreme Court in the judgments relied upon by the petitioners' counsel has clearly expounded that minor delay should not be used as a hurdle in right of the parties to get substantial justice. So far as the question regarding the delay is concerned, Hon'ble Supreme Court in the judgments relied upon by the petitioners' counsel has clearly expounded that minor delay should not be used as a hurdle in right of the parties to get substantial justice. The Hon'ble Supreme Court in the case of Mithailal Dalsangar Singh (supra) has clearly held that a simple prayer for bringing the legal representatives on record without specifically praying for setting aside of an abatement may in substance be construed as a prayer for setting aside abatement. In the case at hand, the application for bringing the legal representatives of Smt. Rambha Devi on record was not unduly belated. It was filed with a delay of just ten days for which reasonable explanation was offered in the application. So far as the argument raised by the learned counsel for the respondent that the petitioners were not residing in the same premises is concerned, it may simply be mentioned that the house in question was given on rent to Shri Bhimaji. As per the averments made in the plaint, all the defendants including Smt. Rambha Devi and the petitioners were residing in the premises after death of Shri Bhimaji. Thus, the issue as to whether the petitioners were residing or not in the suit premises at the relevant point of time is a disputed question of fact and has to be examined by the appellate Court on merits. The rationale behind the trial Court's finding that the decree has become final against the petitioners because they did not challenge the same by filing an appeal independently and thus, they cannot be allowed to continue the appeal, is far from convincing for the simple reason that the application was moved by the petitioners for being impleaded as parties in the capacity of legal representatives of the appellant Smt. Rambha Devi which is an independent right of such legal heirs. The judgments cited by the respondent's counsel are distinguishable on facts and have no application to the case at hand. In this view of the matter, I am of the firm opinion that the impugned order is unjust and illegal and also suffers from error apparent on the face of record and cannot be sustained. 7. Consequently, the writ petition deserves to be and is hereby allowed. In this view of the matter, I am of the firm opinion that the impugned order is unjust and illegal and also suffers from error apparent on the face of record and cannot be sustained. 7. Consequently, the writ petition deserves to be and is hereby allowed. The impugned order dated 26.11.2012 (Annex.9) passed by learned Additional District Judge, Abu Road in Civil Appeal No.11/2008 is hereby quashed and set aside. The trial Court shall implead the petitioners as parties in the appeal and thereafter, proceed to decide the appeal as per law without being prejudice by any of the findings recorded in this order. Stay petition also stands disposed of. No order as to cost.