JUDGMENT Sanjeev Prakash Sharma, J. - Heard learned counsel for both the parties. 2. The short question raised by learned counsel for the defendants-petitioners in the present writ petition is with regard to impleadment of the legal representatives of the plaintiff-respondent who had filed a suit for permanent injunction and due process of law with regard to restraining the defendants-petitioners from evicting him from the shop stated to have been taken on rent. 3. Learned counsel for the defendants-petitioners submits that since the rented shop was a commercial premises, the legal representatives could only be taken on record if the right to sue survived and for the said purpose, enquiry was required to be conducted before taking on record the legal representatives of the plaintiff-respondent. 4. Per-contra, learned counsel appearing on behalf of legal representatives of the original plaintiff-respondent, who have been impleaded as defendants-respondents no.1/1 to 1/5, submits that in the plaint, it was mentioned that the plaintiff-respondent alongwith his two sons was carrying on business at the rented premises and thus no further enquiry was required to be made and in terms of the plaint, the legal representatives of the deceased plaintiff-respondent were taken on record. 5. Learned counsel for the defendants-petitioners has relied on the judgment of this Court in the case of Smt. Usha and Anr. vs. Sukhsampat Mal: 1995 DNJ (Raj.) 392 wherein this Court has held as under:- "5. The first question for consideration in this case is whether Tara Chand vs. Rani Prasad, 1990 (3) SCC 526 , is applicable in this case or not. It is in dispute that the tenant Ramanna died after the definition of 'Tenant' as given in Section 3(vii) of the Act was amended by Rajasthan Act No. 14 of 1976 and in the case tara chand vs. Ram Prasa, 1990 (3) SCC 526 , the definition of 'tenant' as given in the Act prior to the said amendment was involved. However, in the end of para no. However, in the end of para no. 3 at page 530, it has been observed, in connection with the amended definition of 'Tenant' as follows :- "therefore, under the amended definition of tenant, if one seeks to make avail of the benefit of statutory tenancy under the Act, he must establish to the satisfaction of the court that the surviving spouse, son or daughter and other heir, in case of residential purposes, he/she/they ordinarily had been residing in the premises alongwith the tenant and continued to do so till date of death of the tenant. Similarly, in respect of premises leased out for commercial or business purposes it must be established that the surviving spouse or son or daughter and the heir as the case may be ordinarily had been carrying on the business during the life time of the tenant as members of the family in the demised premises and continued to do the business till date of the death of the tenant. In other words to avail of the statutory right under Section 3(vii) (b) there must continue to subsist the unity of action and continuity of membership of the family between the deceased tenant and the spouse etc. The break in either of the links snaps off the right denuding the continuity of the statutory tenancy." In view of these observations of their Lordships of the Supreme Court, the Full Bench decisidon reported in Smt. Ramjevani vs. Smt. Narati Bai, 1989 (2) RLR 308 (FB) taking contrary view, is no more a good law. The learned first appellate court rightly declined to follow it. According to th above quoted observations of their Lordships of the Supreme Court, the widow Mst. Usa and son Mukesh of the deceased tenant were also required to prove that they had been carrying on the business during the life time of the tenant Ramanna as members of the family in the demised premises and continued the business till the date of his death." 6. Learned counsel for the defendants-petitioners has also relied on the judgment of this Court in the case of Mohd. Kasam & Ors. vs. Ghasi Lai: 2003 (3) DNJ (Raj.) 1477 wherein it was held as under:- "6............ Learned counsel for the defendants-petitioners has also relied on the judgment of this Court in the case of Mohd. Kasam & Ors. vs. Ghasi Lai: 2003 (3) DNJ (Raj.) 1477 wherein it was held as under:- "6............ In other words to avail of the statutory right under section 3(vii)(b) there must continue to subsist the unity of action and continuity of membership of the family between the deceased-tenant and the spouse etc. Thus, in view of the judgment of Hon'ble Apex Court the three judgments relied upon by learned counsel for the appellants (all supra) are not applicable to the facts of the present case. In the instant case, the original tenant died on 12.12.2001 i.e. much after the amended definition of the tenant and thus as held by Hon'ble the Apex Court in in Para 3 of the judgment, the appellants can avail of the benefit of statutory tenancy under the Act only when it is established that they were ordinarily carrying on business with the deceased-tenant in the suit shop as member of his family upto his death. This is not relevant that the present suit was filed in the year 1975." 7. Order 22, Rule 3 CPC provides as under:- "22.3. Procedure in case of death of one of several plaintiff or of sole plaintiff.- (1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to the sue survives, the Court, on an application made in that behalf, shall cause the legal representative, of the deceased plaintiff to be made a party and shall proceed with the suit. (2) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff." 8. Order 22, Rule 5 CPC provides as under:- "22.5. Order 22, Rule 5 CPC provides as under:- "22.5. Determination of question as to legal representative Where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the Court [Provided that where such question arises before an Appellate Court, that Court may, before determining the question, direct any subordinate Court to try the question and to return the records together with evidence, if any, recorded at such trial, its findings and reasons therefor, and the Appellate Court may take the same into consideration in determining the question.]" 9. Section 3(vii) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950, as it existed then, defines the 'tenant' as under as under:- "3(vii) "tenant" means- (a) the person by whom or on whose account or behalf rent is, or, but for a contract express or implied would be payable for any premises to his landlord including the person who is continuing in its possession, after the termination of his tenancy otherwise than by a decree for eviction passed under the provisions of this Act; and (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 the case of premises leased out for residential purpose, ordinarily residing and in the case of premises leased out for commercial or business purposes, ordinarily carrying on business with him in such premises as member of his family upto his death.]" 10. Keeping in view the aforesaid provisions, a look at the application moved by legal representatives of the deceased plaintiff, shows that the application mentions about the legal representatives of the plaintiff which includes his wife, two sons namely; Heera Lal and Puri Lal Sikri, daughters namely; Indu Bala and Neetu Sikri. It is also stated that the nature of the suit or the plaint would not change on their being impleaded as legal heirs of the plaintiff. 11. In reply to the application, the defendants-petitioners have objected their impleadment as legal representatives on the ground that they did not have right to sue surviving in their favour. 12. The question relating to the applicants being the legal representatives of the plaintiff is not denied. 13. 11. In reply to the application, the defendants-petitioners have objected their impleadment as legal representatives on the ground that they did not have right to sue surviving in their favour. 12. The question relating to the applicants being the legal representatives of the plaintiff is not denied. 13. Thus, taking into consideration above and the fact that in the plaint, it has already been mentioned by the plaintiff of his sons carrying on business alongwith the plaintiff, so far as both the sons are concerned, the right to sue survives in view of the averments made in the plaint itself. 14. In the judgments, cited by learned counsel for the defendants-petitioners in the case of Mohd. Kasam & Ors. vs. Ghasi Lal (supra), this Court, while examining this aspect, has held as under:- "7. The next submission with regard to enquiry has also got no force. According to Order 22, Rule 5 C.P.C. enquiry as envisaged that where a question arises as to whether any person is or is not the legal representative of the deceased plaintiff or a deceased defendant such question shall be determined by the Court. It is also provided that where such question arises before an Appellate Court that Court may, before determining the question, direct any subordinate court to try the question and to return the records together with evidence. Learned counsel for the appellants relied upon Mahendra Kumar vs. Lalchand and Anr., wherein it was held that Court was required to determine the question of legal representative, under order XXII Rule 5 C.P.C. in a case where such dispute arises. In the instant case question of any such enquiry never arose as the first appellate court categorically held that neither the appellants averred in their application filed under Order 22, Rule 4 C.P.C. that all or any of them were ordinarily carrying on business with their father in the suit shop as member of his family upto his death, nor the original tenant pleaded any such fact in his written statement, rather the original tenant in his statement stated otherwise and thus the present appellants were not the tenants under the Act. I have gone through the record. The written statement was filed in February 1976 and there is no such pleading that he is doing business alongwith any of his family members. I have gone through the record. The written statement was filed in February 1976 and there is no such pleading that he is doing business alongwith any of his family members. Rather in additional para 2 of the written statement it was specifically pleaded that the defendant himself carries on his business for his livelihood in the suit shop. The statement of the original tenant was recorded on 6.5.1994. While admitting himself as tenant for the last 28 to 30 years, it was deposed by him that he was carrying on his business in the suit shop for his livelihood. In cross-examination, on 5.7.1995, he pleaded that all his four sons were carrying on their separate business. All of them have got nine shops, out of nine shops, seven are on rent and in remaining two shops his sons carried on their business. It was further stated by him that he resides separately from his sons. No such plea was taken in first appeal filed by the original tenant that all his sons are carrying on their business with him in the suit shop and the most important aspect is that there is no such averments made by the present appellants in their application to implead them his legal heirs. In view of these facts, there was no question of conducting any enquiry on this point as to whether all the appellants or any of them were carrying on their business in the suit shop alongwith their father as member of his family upto his death. Thus the findings of the learned first appellate court can not be said to be perverse and no substantial question of law is involved in this appeal. Hence this second appeal is dismissed at the admission stage alongwith second stay application. " 15. The facts of the present case are also similar and thus, the question of conducting enquiry under Order 22, Rule 5 CPC was not necessary taking into consideration the averments made in the plaint so far as two sons are concerned. In view of Order 22, Rule 3 CPC, since both the sons were shown to have been carrying on business alongwith their father, the right to sue survives on them and therefore, they are required to be impleaded as party. 16. In view of Order 22, Rule 3 CPC, since both the sons were shown to have been carrying on business alongwith their father, the right to sue survives on them and therefore, they are required to be impleaded as party. 16. However, as regards the other legal representatives, who have been brought on record by the order impugned, namely; wife-Smt. Adarsh Sikari, two daughters-Indu Bala Sikri and Neetu Sikri are concerned, since no averment has been made either in the plaint or in the application with regard to their being involved in the business which was being carried on by the deceased-plaintiff during his life time, the right to sue does not survive and therefore, they need not be impleaded as legal representative 17. Accordingly, to that extent the order passed by the court below dated 18/04/2014 is modified. The cause title of the suit shall only include sons of the deceased-plaintiff namely; Heera Lal and Puri Lal Sikri as parties and the proceedings shall continue thereupon. 18. With the aforesaid observations and directions, the writ petition stands disposed of. Petition disposed of.