KULDEEP KUMAR DUBEY & ORS.versusRAMESH CHANDRA GOYAL (D) TH LRS.

                      [2015] 1 S.C.R. 543


             KULDEEP KUMAR DUBEY & ORS.                                A
                                v.
         RAMESH CHANDRA GOYAL (D) TH LRS.
            (Civil Appeal No. 1094 OF 2015)
                      JANUARY 21, 2015
                                                                       B
    [T.S. THAKUR AND ADARSH KUMAR GOEL, JJ.]

     Suit - Maintainability of - On the ground of non-joinder
of parties - Institution of suit. by father of owners of the
property in question - However, the owners inducted as                 C
plaintiffs as heirs, after death of their father - Held: Description
of the plaintiffs as owners being heirs instead of description
as owners in their own right, is an irregularity which can be
cured under 0. 1 r. 10 CPC - The wrong description of
plaintiffs which did not prejudice to the defendant would not          D
affect the maintainability of the suit - Revisional court was not
right in reversing the decree on such technicality which did
not affect the merits of the case - Code of Civil Procedure,
1908 - Or. 1 r.10 and s.99.
                                                                       E
     Allowing the appeal, the Court

     HELD: 1.lt is undisputed that appellant Nos.1 and 2
are the sole owners of the property in question. It is not
disputed that they were substituted as plaintiffs on the
death of their father (the original plaintiff) before the trial        F
Court itself. It is also not disputed that they could maintain
the suit for eviction. Thus on admitted facts, only defect
pointed out was of formal nature in description without,
in any manner, affecting the merits or the jurisdiction of
the Court. Such irregularity could have been corrected                 G
by the Court under Order 1 Rule 10 and can be corrected
even at this stage unless the defendant is, in any manner,
prejudiced. [para 9] [548-G-H; 549-A]

                                543                                    H
    544       SUPREME COURT REPORTS             [2015] 1 S.C.R.


A      2.The Revision Court is not justified in reversing the
  decree of the trial Court on such a technicality which did
  not in any manner affect the merits of the case, in view
  of Section 99 CPC that no decree to be reversed or
  modified for error or irregularity not affecting merits or
B jurisdiction. [para 1OJ [549-C-D]

        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    1094 of 2015.

      From the Judgment and Order dated 19.10.2012 of the
C High Court of Judicature at Allahabad in Writ A No. 52578 of
  2004.

        V. Shekhar, Abhigya, Arvind Kumar Singh, Nishant
    Anaand, Chander Shekhar Ashri for the Appellants.
D
        Sandeep Narain, Ajaay Bansal, S. Naraian & Co. for the
    Respondents.

          The Judgment of the Court was delivered by.

E         ADARSH KUMAR GOEL, J. 1. Leave granted.

         2. This appeal has been preferred against judgment and
    order dated 19th Odober, 2012 passed by the High court of
    Judicature at Allahabad in Civil Misc. Writ Petition No.52578
    of 2004.
F
       3. The question for consideration is whether the suit filed
  by the father of the appellants in respect of property owned by
  appellants Nos.1 and 2 could be held to be not maintainable
  even when the appellants were added as plaintiffs as heirs of
G their father who died during pendency of the suit and whether
  description of the appellants who are owners as heirs instead
  of     owners       in   their      own     right     will    be
  a case of mere "error, defect or irregularity" not affecting the
  merits or jurisdiction of the Court which did not affect the
H maintainability of the suit.
 KULDEEP KUMAR DUBEY v. RAMESH CHANDRA                         545
  GOYAL (D) TH LRS. [ADARSH KUMAR GOEL, J.]
                                                      '
      4. Raj Kumar was owner of the suit property who died on          A
4th February, 1994. Shiv Kumar Dubey, brother of Raj Kumar
filed the suit for eviction of the respondent-tenant in his capacity
as heir of Raj Kumar on the ground of non payment of rent on
24th April, 1995. During pendency of the suit, Shiv Kumar
Dubey died on 11th August, 1996 and the appellants Kuldeep             B
Kumar and Pradeep Kumar sons of Shiv Kumar Dubey and
Smt. Dayawati widow of Shiv Kumar Dubey were substituted
as plaintiffs being his heirs. The suit was contested by the tenant
(who has also died during pendency of the proceedings in this
Court and who has been substituted by his legal heirs) by filing       c
a written statement admitting that Raj Kumar was the owner and
Shiv Kumar was his brother and heir apart from other heirs. It
was stated that rent was deposited in Court. Sister of Raj
Kumar, an heir of Raj Kumar, was also a necessary party. It
may be mentioned that Raj Kumar had executed Will in favour            D
of appellants Kuldeep Kumar and Pradeep Kumar but the said
appellants were shown in cause title only as heirs of Shiv Kumar
and not as owners. No objection was, however, raised by the
tenant on that account. The trial Court framed the following
issues:
                                                                       E
             "1. Whether the plaintiff is the landlord of the
             defendant?

            2. Whether the defendant has defaulted in
            payment of rent and has not made the payment               F
            of rent from 01. 06. 1993 and the computed
            amount of Rs.830, of water tax?

             3. Whether the disputed shop is on rent of Rs. 751
             - per month including house tax and water tax?
                                                                       G
             4. Whether the suit is bad for the non-joinder of
             necessary parties?

             5. Whether defendant is entitled to get the benefit
             of section 20(4) Uttar Pradesh Rent Act?
                                                                       H
    546       SUPREME COURT REPORTS               [2015] 1 S.C.R.


A               6. Whether the eviction notice dated 22. 07. 1995
                is against law?"

        Issue Nos. 1 and 4 were decided in favour of the plaintiffs
  and against the defendant. It was observed that the defendant
  had not mentioned the name of any other heir of Raj Kumar in
8
  the written statement. Issue Nos. 2 and 5 were also decided
  against the defendant. It was held that the defendant had
  defaulted in payment of rent from 1st June, 1993 and was not
  entitled to benefit under Section 20(4) of the Uttar Pradesh
  Urban Buildings (Regulation of Letting, Rent and Eviction) Act,
C 1972. Under Issue No.3, the rate of rent was held to be Rs.75/
  -per month, excluding the house tax and the water tax. Under
  Issue No.6 it was held that the tenancy was validly terminated.
  Accordingly, the trial Court passed a decree for eviction and
  for payment of rent on 8th December, 1998.
D
        5. Aggrieved by the decree of the trial Court, the tenant
        preferred a revision petition before the District Judge,
        Moradabad, which was allowed vide order dated 2nd
        September, 2004. It was held that the plaintiff had himself
E       produced the Will dated 14th December, 1988 whereby
        Raj Kumar, original owner of the property in question
        bequeathed the property in favour of the appellants
        Pradeep Kumar and Kuldeep Kumar sons of Shiv Kumar.
        In such situation, Shiv Kumar did not have any right to file
F       the suit and only his sons had such a right. The relevant
        observations are as under:

          "Whereas Shiv Kumar died on 11. 08. 1996104. 02. 1998
          and in his place, his two sons Ku/deep Kumar and
          Pradeep Kumar and his wife Oayawati have been
G         impleaded in his place, as his representatives and the
          plaintiff has submitted a Will document No. 32 ga vide
          which Raj Kumar has given all his properties house and
          shop and bhoomidaari vide Will to both the sons of Shiv
          Kumar - Pradeep Kumar and Ku/deep Kumar, on
H
KULDEEP KUMAR DUBEY v. RAMESH CHANDRA                    54 7
 GOYAL (D) TH LRS. [ADARSH KUMAR GOEL, J.]
  14.12.1988 by executing it and registering it, which Will      A
  has been submitted by the plaintiff and the defendant has
  not denied it. On that basis, from the above Will, whatever
  the representatives of Raj Kumar would get upon his
  death, all that will go only to Pradeep Kumar and Ku/deep
  Kumar and only they are the representatives, owner and         B
  landlords of the property of Raj Kumar. It is also pertinent
  to mention this fact here that above Will is in the name
  of both the sons Ku/deep and Pradeep Kumar of Shii}
  Kumar and it also cannot be considered that the
  knowledge of the said Will was not known to Shiv Kumar.        c
  Beside this, PW1 Pradeep Kumar has stated in his
  examination in chief that his uncle was Raj Kumar who
  has expired on 4.2.94 and that his uncle had given will
  in regard to all his moveable and immoveable properties
  in his favour along with his brother Ku/deep Kumar on D
  which statement no cross examination has been done by
  the respondent and nor the said will was challenged in
  the arguments due to which reason also the statement
  of Pradeep Kumar in connection with the will is found as .
  acceptable in the evidence and the said will also is E
  acceptable as evidence due to not being challenged by
  the respondent. Here this fact is also pertinent that both
  parties have accepted that Raj Kumar was the owner of
  the property in question and this is acceptable to the
  petitioner also that on 14. 12. 88, Raj Kumar had granted F
  will of all his moveable and immoveable properties in
  favour of Ku/deep Kumar and Pradeep Kumar from
   which it is clear that the averment of Shiv Kumar in his
  notice about his being joint owner of the property with Raj
  Kumar and in the plaint as successor of Raj Kumar being G
  landlord of the shop in question was incorrect and after
   the death of Raj Kumar, Shiv Kumar got no rights in the
  property in question as successor and as per Will dated
   14. 12. 88, after the death of Raj Kumar it is found that
   owner of his property are opposite parties Pradeep H
    548       SUPREME COURT REPORTS                  [2015] 1 S.C.R.


A         kumar and Ku/deep Kumar and this ismso found proven
          that Shiv Kumar got no ownership rights after the death
          of Raj Kumar. Here this fact is also pertinent that the
          payment of rent was made up to the end to Raj Kumar
          and thereafter rent was deposited under section 30(1) of
6         the UP. Act 13, 1972 in Misc. Suit No.20193 Ramesh
          Kumar vs. Raj Kumar and Raj Kumar died on 4. 2. 94 and
          in this way in the definition of landlord given in section
          30) U.P. Act 13, 1972, in that also only Raj Kumar is
          covered and since no rent was paid to Shiv Kumar
c         therefore he does not fall in the definition of landlord.
          Therefore, the conclusion given by lower court in regard
          to issue no. 1 is dismissed due to being found against law.
          And this is held that Shiv Kumar was neither the owner
          of the shop in question nor landlord and accordingly
          issue no. 1 is disposed off."
D
          6. The appellants moved the High Court by way of writ
    petition against the order of the District Judge. The High Court
    vide impugned order affirmed the order of the District Judge.

E        7. During pendency of the matter in this Court, the
    respondent has died and his heirs have been brought on record.
    Though the heirs of the deceased respondent have been duly
    served, only respondent No.3 has chosen to put in appearance
    and other heirs are proceeded against ex-parte. In his counter
F   affidavit, respondent No.3 has stated that only appellants Nos.1
    and 2 had the title to the shop and they could seek eviction
    only in their own capacity and not in their capacity as legal heirs.

          8. We have heard learned counsel for the parties.
G       9. Learned counsel for the appellants submitted that it is
  undisputed that appellants Nos.1 and 2 are the sole owners of
  the property in question. It is not disputed that they were
  substituted as plaintiffs on the death of Shiv Kumar before the
  trial Court itself. It is also not disputed that they could maintain
H the suit for eviction. Thus on admitted facts, only defect pointed
 KULDEEP KUMAR DUBEY v. RAMESH CHANDRA                         549
  GOYAL (D) TH LRS. [ADARSH KUMAR GOEL, J.]
out is of formal nature in description without, in any manner,         A
affecting the merits or the jurisdiction of the Court. Such
irregularity could have been corrected by the Court under Order
1 Rule 10 and can be corrected even at this stage unless the
defendant is in any manner prejudiced. No principle or authority
has been brought to our notice which could affect the                  'B
maintainability of the suit me,rely on account of wrong
description which did not in any manner cause prejudice to the
defendant, particularly when no such objection is shown to have
been raised before the trial Court.
     10. In our view, the District Judge is, thus, not justified in    C
reversing the decree of the trial Court on such a technicality
which did not in any manner affect the merits of the case.
Section 99 of the Code of Civil Procedure, 1908 provides as
under:
                                                                       D
     "99. No decree to be reversed or modified for error
     or irregularity not affecting merits or jurisdiction:
     No decree shall be reversed or substantially varied, nor
     shall any case be remanded, in appeal on account of any                ..
     misjoinder [or non-joinder] of parties or causes of action        E
     or any error, defect or irregularity in any proceedings in the
     suit, not affecting the merits of the case or the jurisdiction
     of the Court:
     [Provided that nothing in this section shall apply to
     non-joinder of a necessary party.]                                 F

     11. Thus, the High Court also erred in upholding the order
of the District Judge.
     12. Accordingly, we allow this appeal, set aside the
impugned orders of the High Court and the District Judge and           G
restore the order of the trial Court dated 8th December, 1998
in JSCC No.5 of 1995 passed by the Civil Judge, (J.D.),
Hasanpur, Moradabad. No costs.

Kalpana K. Tripathy                                  Appeal allowed.   H