ORDER : I.A. No. 01/2024: 1. An application has been moved on behalf of the petitioner stating inter alia that due to inadvertent and bonafide mistake in the cause title, the name of Smt. Bhanwari devi has been mentioned whereas Smt. Bhanwari Devi has already expired. While tendering apology, it has been prayed in the application that the name of Smt. Bhanwari Devi may be deleted from the cause title and her name be substituted with the name of her legal representative Shri Sashindra Sukhlecha. 2. For the reasons indicated in the I.A. No. 01/2024, the same is allowed. The amended cause title is directed to be taken on record. S.B. Civil Writ Petition No. 17107/2024: 1. The present writ petition under Articles 226 & 227 of the Constitution of India has been filed by the petitioner being aggrieved by the order dated 12.09.2024, passed by the learned Rent Appellate Tribunal, Bikaner, in Rent Appeal No. 02/2017, whereby the application filed by the petitioner under Order XXII Rule 10 of CPC has been rejected. 2. Learned counsel for the petitioner submitted that an application/petition under Section 9 of the Rajasthan Rent Control Act, 2001 was filed by one Smt. Bhanwari Devi W/o Shri Bhanwar Lal before the Rent Tribunal, Bikaner against the petitioner seeking an order of eviction on the grounds of default in payment of rent and intentional/deliberate damage to the rented premises. The Rent Tribunal, Bikaner vide order dated 29.11.2016, pleased to allow the said application. Being aggrieved by the order dated 29.11.2016, the petitioner preferred an appeal before the Rent Appellate Tribunal, Bikaner. 3. Learned counsel submitted that an application dated 30.11.2021 came to be filed by the respondent informing the Appellate Tribunal that the sole respondent, Smt. Bhanwari Devi had expired on 20.09.2021. In the application, it was further stated that now, as per the Will of the deceased Smt. Bhanwari Devi, Shri Sashindra Sukhlecha is her legal representative in the matter. On receiving the application dated 30.11.2021, a reply thereto was filed by the petitioner on 21.10.2023, stating therein that late Smt. Bhanwari Devi had three living sons and daughters therefore, appropriate orders may be issued for providing a copy of the Will of the deceased as well as the details of her legal heirs/representatives. On receiving the application dated 30.11.2021, a reply thereto was filed by the petitioner on 21.10.2023, stating therein that late Smt. Bhanwari Devi had three living sons and daughters therefore, appropriate orders may be issued for providing a copy of the Will of the deceased as well as the details of her legal heirs/representatives. Thereafter, on receiving the details about the legal representatives, a detailed application was filed for bringing them on record and an application for condonation of delay and setting aside the abatement of the appeal, if any, was also filed. 4. It was contended that during the pendency of the appeal, the counsel appearing on the behalf of both the parties agreed that till the disposal of the appeal, the execution proceedings would not be initiated, however, in the year 2024, the execution proceedings were initiated against the petitioner whereupon, a stay application seeking stay of execution proceedings was filed by the petitioner before the Rent Appellate Tribunal. 5. Learned counsel further urged that an application under Order XXII, Rules 4 and 9 CPC was also filed on behalf of the petitioner. On 01.04.2024, the said application came to be withdrawn and an application under Order XXII Rule 10 CPC was moved by the petitioner stating inter alia that as per the Will of Smt. Bhanwari Devi, assignment, creation and devolution of the interest is in favour of Shri Sashindra Sukhlecha and therefore, he is a necessary and proper party. In the application, it was prayed that Shri Sashindra Sukhlecha be impleaded as party respondent in place of late Smt. Bhanwari Devi. 6. Learned counsel submitted that while rejecting the application filed on behalf of the present petitioner under Order XXII Rule 10 CPC, learned Rent Appellate Tribunal, failed to consider that the right to apply under the aforesaid Rule is a continuing right and therefore the same can be exercised at any time. However, in the present case, the application under Order XXII Rule 10 has been rejected only on the ground that the same has been filed at a belated stage and further, the application under Order XXII Rule 4 CPC filed by the petitioner-appellant had already been dismissed as withdrawn. 7. However, in the present case, the application under Order XXII Rule 10 has been rejected only on the ground that the same has been filed at a belated stage and further, the application under Order XXII Rule 4 CPC filed by the petitioner-appellant had already been dismissed as withdrawn. 7. In support of his arguments, learned counsel for the petitioner placed reliance on the judgment of the Hon’ble Supreme Court, rendered in the case of Chandra Bai (Dead) through Legal Representatives v. Khandalwal Vipra Vidyalaya Smaiti & Ors. (2016) 12 SCC 534 . 8. Learned counsel thus prayed that the present writ petition may be allowed and the order passed by the learned Appellate Tribunal dated 12.09.2024 be quashed and set aside. 9. Per contra, learned counsel for the respondent submitted that the respondent-Bhanwari Devi admittedly died during the pendency of the appeal before the learned Rent Appellate Tribunal. This fact was brought to the knowledge of the petitioner by way of filing an application dated 30.11.2021. Thereafter, one application was filed by the petitioner under Order XXII Rule 4 CPC for bringing her legal representatives namely, Manoj Kumar, Ashok Kumar, Raju, unnamed daughter of Smt. Bhanwari Devi on record. The said application however came to be dismissed as withdrawn on 01.04.2024. It was contended that the present proceedings stood automatically abated upon the death of Smt. Bhanwari Devi particularly when no application seeking substitution was filed/pending before the Tribunal upon expiry of 90 days. 10. Drawing attention of the Court towards impugned order dated 30.11.2021, learned counsel submitted that though an application under Order XXII Rule 10 CPC was moved by the petitioner for making Shri Sashindra Sukhlecha as respondent in the appeal in place of late Smt. Bhanwari Devi, however, as the same was filed beyond a period of 90 days and further without making application for continuation of the proceedings/setting aside of abatement order dated 01.04.2024, the same has rightly been rejected by the learned Rent Appellate Tribunal. In support of his arguments, learned counsel for the respondents has placed reliance on the following judgments: (i) Mahant Narayan Bharti v. State of Rajasthan and Ors. 2018 (1) Civil Court Cases 360 (Rajasthan) (ii) Triloki Saran Pathak & Ors. v. Board of Revenue & Ors. 2016 (1) Civil Court Cases 769 (Allahabad) 11. Learned counsel for the respondents thus prayed for the rejection of the present writ petition. 2018 (1) Civil Court Cases 360 (Rajasthan) (ii) Triloki Saran Pathak & Ors. v. Board of Revenue & Ors. 2016 (1) Civil Court Cases 769 (Allahabad) 11. Learned counsel for the respondents thus prayed for the rejection of the present writ petition. 12. Heard learned counsel for the parties at Bar. Perused the material available on record. 13. The order of the learned Appellate Tribunal dated 01.04.2024 is reproduced below for ready reference: ^^vihykFkhZ ds odhy Jh ethn vyh miŒA vihykFkhZ vf/koDrk us ÁkFkZuk i= fnukafdr 25-10-2023 ckcr vkns'k 22 fu;e 4 o fu;e 9 dks uksV Ásl fd;kA vr% ÁkFkZuk i= uksV Ásl ds vk/kkj ij [kkfjt fd;k tkrk gSA vihykFkhZ ds odhy }kjk vkt ,d njŒ vkns'k 22 vkj 10 lhihlh dh Jh 'kf'kUæ dks i{kdkj cukus ds fy;s ÁLrqr dhA ftldh udy iwoZ ds ÁR;FkhZ ds odhy Jh fxjhjkt esgrk dks fnykbZ xbZA bldk tokc vÁkFkhZ ds vf/koDrk us ÁLrqr djus dk le; ekaxkA i=koyh okLrs tokc vkns'k 22 fu;e 10 lhihlh ds fy;s fnukad 15-04-2024 dks is'k gksA** (Emphasis supplied) 14. The operative portion of the impugned order dated 12.09.2024 passed by the learned Appellate Tribunal, Bikaner is reproduced below for ready reference: “After considering the rival contentions made by the learned counsels and after giving a meaningful reading to the judgments cited by appellant, it appears that it is not disputed that Bhanwar Devi died on 20.09.2021 and a written intimation of his death was given by his legal heir, by way of “Will” Mr. Shashindra Sukhlecha before this Court on 30.11.2021. After that, one application under Order 22 Rule 4 CPC was filed by appellant which was dismissed as withdrawn, as not pressed on 01.04.2024 and after that the instant application was filed on 01.04.2024. It is apparent that this application is filed after about 27 months of death of Bhanwari Devi which is clearly beyond stipulated time of 90 days. So, it is clear that the appeal is already abated against respondent Bhanwari Devi. No application regarding setting aside of abatement has also filed by appellant. So, it is clear that the appeal is abated against respondent Bhanwari Devi. So, it is clear that the appeal is already abated against respondent Bhanwari Devi. No application regarding setting aside of abatement has also filed by appellant. So, it is clear that the appeal is abated against respondent Bhanwari Devi. As far as the principles laid down in the judgment cited by appellant, in our considered opinion, it is not helpful to appellant as the application under Order 22 Rule 4 CPC is already dismissed as withdrawn on 01.04.2024 and after that this application under Order 22 Rule 10 CPC has been filed, but till then, the prescribed stipulated time was already passed away and the appeal stands abated. 7. Hence with these observations, this application is hereby rejected and the appeal stands abated against deceased Bhanwari Devi.” 15. The Hon’ble Supreme Court in the case of Chandra Bai (Dead) through Legal Representatives (supra) held that: “8. We have further noticed that in Baijnath Ram & Ors. v. Tunkowati Kuer & Ors. The Full Bench of the Patna High Court has held: “15..........Another thing to notice in connection with this rule is that a party on whom the interest of the deceased plaintiff or defendant devolves is not entitled to continue the suit or appeal as a matter of right, it is essential to obtain the leave of the Court. The granting of leave is within the discretion of the Court. The Court, however, is to exercise its discretion judicially and according to well-established principles. Further, unlike Rules 3 and 4, no limitation is prescribed for presentation of an application under this rule and no penalty is laid down for failure to substitute the person on whom the interest of the deceased plaintiff or defendant was devolved. Therefore, the right to make an application under this rule is a right which accrues from day to day and can be made at any time during the pendency of a suit. There is no abatement under this rule.” (Emphasis supplied) 9. Accordingly, we find that the High Court, after considering the facts and circumstances of this case, has correctly come to the conclusion in the matter and we do not have any room to interfere with the order so passed by the High Court. Accordingly, the special leave petition is dismissed.” 16. Accordingly, we find that the High Court, after considering the facts and circumstances of this case, has correctly come to the conclusion in the matter and we do not have any room to interfere with the order so passed by the High Court. Accordingly, the special leave petition is dismissed.” 16. Having considered the submissions made by the parties and after having perused the record of the case so also the impugned order of the learned Appellate Tribunal, this court finds that the respondent Smt. Bhanwari Devi died on 20.09.2021. On 30.11.2021, a written information in this regard was given by Sashindra Sukhlecha and advocate of Late Smt. Bhanwari Devi to the learned Rent Appellate Tribunal, so also to the advocate representing the petitioner in appeal. However, no application under Order XXII Rule 4 CPC for bringing the legal representatives of Smt. Bhanwari Devi for impleadment as party-respondents in the aforesaid appeal was filed within the stipulated period. 17. The documents annexed with the writ petition indicate that on 01.04.2024, counsel representing the petitioner before the learned Appellant Rent Tribunal, filed an application under Order XXII Rule 10 CPC for bringing respondent-Sashindra Sukhlecha as party to the appeal. 18. It appears from the record that at the time when application under Order XXII Rule 10 CPC was filed, the proceedings in relation to the appeal against the order dated 29.11.2016 passed by the learned Rent Tribunal Bikaner were pending before the Rent Appellate Tribunal. In the opinion of this Court, once the application under Order XXII Rule 10 CPC is filed, the appeal would not be abated even if, on the very same day the application filed under Order XXII Rule 4 CPC is withdrawn. This is for the sole reason that the application under Order XXII Rule 10 CPC can be made at any time till the proceedings are pending adjudication. There is no quarrel on the legal proposition that question of delay/latches does not arise in the case where an application under Order XXII Rule 10 CPC is filed. The same however would arise in the cases falling under Order XXII Rule 3 or Rule 4 CPC. There is no quarrel on the legal proposition that question of delay/latches does not arise in the case where an application under Order XXII Rule 10 CPC is filed. The same however would arise in the cases falling under Order XXII Rule 3 or Rule 4 CPC. In the present case, as noticed above, since the application under Order XXII Rule 10 CPC was pending before the learned Rent Appellate Tribunal, Bikaner when the application under Order XXII Rule 4 CPC was withdrawn, it cannot be said that the said application was preferred after the appeal in question stood abated. 19. In the result, the present writ petition is allowed. The order dated 12.09.2024 is quashed and set aside. Learned Rent Appellate Tribunal, Bikaner is directed to consider the application filed by the petitioner under Order XXII Rule 10 CPC afresh within a period of three weeks from today. 20. It is further directed that the execution proceedings in relation to Case No. 08/2024 (Sashi Sukhlecha v. Sarju Kumar) shall remain stayed till the final disposal of the appeal. 21. All pending applications are accordingly disposed of. 22. No order as to costs.