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[2015] 1 S.C.R. 543 KULDEEP KUMAR DUBEY & ORS. v. RAMESH CHANDRAGOYAL (D) TH LRS. (CivilAppeal No. 1094 OF 2015) JANUARY 21, 2015 [T.S. THAKUR AND ADARSHKUMAR GOEL, JJ.] Suit -Maintainability of - On the ground of non-joinder A B of parties-Institution of suit. by father of owners of the property in question- However, the ownersinducted as C plaintiffs as heirs, after death of their father-Held:Description of the plaintiffs as ownersbeing heirs instead of description as owners in their own right, is an irregularitywhich can be cured under 0. 1 r. 10 CPC - The wrongdescription of plaintiffswhich did notprejudice to thedefendantwould not D affect the maintainability of the suit -Revisionalcourt was not right in reversing the decree on suchtechnicalitywhich did notaffect the merits of the case- Code of CivilProcedure, 1908 - Or. 1 r.10 and s.99. Allowing the appeal, the Court HELD: 1.lt isundisputed that appellant Nos.1and 2 E are the sole owners of theproperty in question. It is not disputed that theywere substituted as plaintiffs on the death of their father(the originalplaintiff) before the trial F Court itself. It is also not disputed that they could maintain the suit for eviction.Thus on admittedfacts, only defect pointed out was of formal naturein description without, inanymanner,affectingthe merits or the jurisdiction of theCourt. Suchirregularitycould have beencorrectedG bythe Court under Order 1 Rule 10 andcan be corrected evenat this stage unless the defendantis, in anymanner, prejudiced.[para 9] [548-G-H;549-A] 543 H 544 SUPREME COURT REPORTS [2015] 1 S.C.R. A 2.The RevisionCourt is notjustified in reversingthe decree of the trial Court on sucha technicality whichdid notin anymanneraffect the merits of the case, in view of Section 99 CPC that no decree to be reversed or modifiedfor erroror irregularitynot affectingmerits or B jurisdiction.[para 1 OJ [549-C-D] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1094 of 2015. Fromthe Judgmentand Order dated 19.10.2012of the C HighCourtof Judicatureat Allahabad in Writ A No. 52578 of 2004. D V. Shekhar, Abhigya,Arvind Kumar Singh, Nishant Anaand,Chander Shekhar Ashri for the Appellants. Sandeep Narain,Ajaay Bansal, S. Naraian & Co. for the Respondents. TheJudgmentof theCourtwas delivered by. EADARSH KUMARGOEL, J. 1. Leave granted. F 2. This appeal has beenpreferredagainst judgmentand orderdated19th Odober, 2012 passed by the Highcourtof Judicature at Allahabad in Civil Misc.Writ PetitionNo.52578 of 2004. 3. The questionfor consideration is whetherthe suit filed by thefatherof the appellants in respect of propertyowned by appellants Nos.1 and 2 could be held to be not maintainable evenwhenthe appellants were added as plaintiffs as heirsof Gtheirfatherwho diedduringpendencyof thesuitandwhether descriptionof the appellants whoare owners as heirsinstead of owners in their own right will be acase of mere "error, defector irregularity" not affectingthe meritsor jurisdiction of theCourtwhichdid not affectthe Hmaintainabilityof thesuit. KULDEEP KUMAR DUBEY v. RAMESHCHANDRA 545 GOYAL (D) THLRS.[ADARSH KUMARGOEL, J.] ' 4. RajKumarwas owner of the suitpropertywho diedonA 4thFebruary,1994. Shiv KumarDubey,brother of Raj Kumar filed the suitfor eviction of therespondent-tenant in his capacity asheir of RajKumaron theground of nonpayment of renton 24th April, 1995.Duringpendency of the suit,ShivKumar Dubeydied on 11th August,1996 and the appellantsKuldeep B Kumarand PradeepKumar sons of Shiv KumarDubey and Smt.Dayawatiwidow of Shiv KumarDubey were substituted as plaintiffs beinghis heirs.The suit wascontestedby thetenant (whohas also died duringpendency of the proceedings in this Court andwhohas beensubstitutedby his legal heirs)by filing c a writtenstatementadmitting that Raj Kumarwas the ownerand ShivKumarwas his brotherand heir apartfrom otherheirs. It was statedthat rent wasdepositedin Court.Sister of Raj Kumar,an heir of RajKumar,was also a necessaryparty. It may be mentionedthat Raj Kumar hadexecuted Will in favour D of appellantsKuldeep Kumar and PradeepKumar butthe said appellants were shown in cause titleonly as heirsof ShivKumar andnot as owners.No objectionwas, however,raised by the tenant on thataccount.The trial Court framedthe following issues: "1. Whetherthe plaintiff is thelandlord of the defendant? E 2. Whether the defendant has defaulted in payment of rentand has not madethe paymentF of rent from 01. 06. 1993 and the computed amount of Rs.830, of watertax? 3. Whetherthe disputedshop is on rent of Rs. 751 -permonthincludinghouse tax and water tax? 4. Whether the suit is badfor thenon-joinder of necessaryparties? 5. Whetherdefendant is entitled to get the benefit of section 20(4) Uttar Pradesh Rent Act? G H A 546 SUPREME COURT REPORTS[2015] 1 S.C.R. 6. Whether the evictionnotice dated 22. 07. 1995 isagainst law?" Issue Nos.1 and4 weredecided in favour of the plaintiffs and againstthe defendant. It wasobservedthat the defendant 8had not mentionedthe name of anyotherheir of Raj Kumar in the writtenstatement. Issue Nos. 2 and5 were also decided againstthe defendant. It was held thatthe defendanthad defaulted in payment of rentfrom1st June,1993 and wasnot entitled to benefitunder Section 20(4) of the UttarPradesh UrbanBuildings(Regulation of Letting,Rent and Eviction)Act, C 1972. Under Issue No.3, the rate of rent was held to be Rs.75/ -permonth, excluding the housetax andthe watertax. Under Issue No.6it was held that the tenancywas validly terminated. Accordingly, the trial Court passeda decreefor evictionand forpaymentof rent on 8thDecember,1998. D E F 5. Aggrieved by thedecreeof the trial Court,the tenant preferreda revisionpetition before the DistrictJudge, Moradabad,which was allowed vide orderdated2nd September, 2004. It was held thatthe plaintiff had himself producedthe Will dated 14th December,1988 whereby RajKumar, original owner of the property in question bequeathedthe property in favour of the appellants Pradeep Kumarand Kuldeep Kumarsons of Shiv Kumar. In suchsituation,Shiv Kumardid not haveany rightto file the suitand only his sonshad sucha right.The relevant observationsare as under: "Whereas Shiv Kumar died on 11. 08. 1996104. 02. 1998 and in hisplace,his twosonsKu/deepKumar and Pradeep Kumar and his wife Oayawati havebeen G impleaded in his place,as hisrepresentativesand the plaintiffhas submitteda Willdocument No. 32 ga vide whichRaj Kumarhas givenall hispropertieshouse and shopand bhoomidaari vide Will to boththe sons of Shiv Kumar - Pradeep Kumar and Ku/deepKumar, on H KULDEEP KUMAR DUBEY v. RAMESHCHANDRA54 7 GOYAL (D) TH LRS.[ADARSH KUMARGOEL, J.] 14.12.1988by executingit andregistering it, which Will A has beensubmitted by the plaintiffand the defendanthas notdenied it. On thatbasis, from the above Will, whatever therepresentatives of RajKumarwould get uponhis death, all thatwill go only to PradeepKumar and Ku/deep Kumarand onlytheyare the representatives,owner and B landlords of the property of Raj Kumar. It isalsopertinent to mentionthis factherethat aboveWill is in the name of boththe sonsKu/deepand PradeepKumar of Shii} Kumar and it also cannot be considered that the knowledge of thesaidWill wasnot known to Shiv Kumar. c Besidethis, PW1Pradeep Kumar has stated in his examination in chiefthat his unclewas Raj Kumarwho hasexpired on 4.2.94and that his unclehad givenwill in regard to all hismoveableand immoveableproperties inhisfavouralong with his brotherKu/deepKumar on D which statementno crossexaminationhas beendone by the respondentand nor the saidwill waschallenged in the argumentsdue to which reasonalso the statement of PradeepKumar in connection with the will is foundas . acceptablein theevidenceand the saidwill alsois E acceptableas evidencedue to not beingchallengedby therespondent.Here this factis alsopertinentthat both partieshave acceptedthat Raj Kumarwas the owner of thepropertyin questionand this is acceptable to the petitioneralso that on 14. 12. 88, Raj Kumarhad granted F will of all hismoveableand immoveableproperties in favour of Ku/deep Kumar andPradeep Kumar from whichit isclearthat the averment of Shiv Kumar in his noticeabout his beingjoint owner of the propertywith Raj Kumarand in the plaintas successor of RajKumarbeing G landlord of the shopin questionwas incorrectand after the death of Raj Kumar, Shiv Kumargot no rights in the property in questionas successorand as per Will dated 14. 12. 88, afterthe death of RajKumarit isfoundthat owner of his property are oppositeparties Pradeep H A 6 c D 548 SUPREME COURT REPORTS [2015] 1 S.C.R. kumar and Ku/deepKumar and this ismso foundproven that Shiv Kumargot no ownershiprights after the death of Raj Kumar.Here this factis alsopertinentthat the payment of rentwasmade up to the end to Raj Kumar andthereafterrent was depositedunder section30(1) of the UP. Act 13, 1972 in Misc. Suit No.20193 Ramesh Kumar vs. RajKumarand Raj Kumardied on 4. 2. 94 and in this way in the definition of landlordgiven in section 30) U.P. Act 13, 1972, in thatalsoonlyRaj Kumaris covered and since no rentwas paid to Shiv Kumar thereforehe doesnot fall in thedefinition of landlord. Therefore, the conclusiongiven by lower court in regard to issue no. 1 isdismissed due to beingfoundagainst law. And this is heldthat Shiv Kumarwas neither the owner of the shop in question nor landlordand accordingly issue no. 1isdisposed off." 6. The appellants movedthe HighCourt by way of writ petitionagainst the orderof theDistrictJudge. The HighCourt videimpugned order affirmedthe orderof theDistrictJudge. E 7. Duringpendency of the matter in this Court,the respondenthas died and his heirshave beenbrought on record. Thoughthe heirsof thedeceasedrespondenthave been duly served, only respondentNo.3 has chosento put in appearance andotherheirs are proceededagainst ex-parte. In his counter Faffidavit,respondentNo.3 has stated that only appellants Nos.1 and2 hadthe title to the shopand they could seekeviction only in their own capacity and not in theircapacity as legal heirs. 8. We haveheard learnedcounsel for theparties. G 9. Learned counsel forthe appellants submittedthat it is undisputedthat appellants Nos.1 and 2 arethe sole ownersof theproperty in question. It is not disputedthat theywere substitutedas plaintiffs on the deathof Shiv Kumarbefore the trial Court itself. It is also not disputedthat they could maintain Hthesuitfor eviction.Thus on admittedfacts, only defect pointed KULDEEP KUMAR DUBEY v. RAMESHCHANDRA 549 GOYAL (D) TH LRS.[ADARSHKUMAR GOEL, J.] outis of formal nature in descriptionwithout, in any manner,A affectingthe merits or the jurisdiction of theCourt. Such irregularitycould have beencorrectedby theCourtunder Order 1 Rule 10 and can be correctedeven at thisstage unlessthe defendantis in any mannerprejudiced. 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 descriptionwhich did not in anymannercause prejudice to the defendant, particularly whenno suchobjectionis shownto have beenraisedbeforethe trial Court. 10. In ourview,the DistrictJudge is, thus,not justified in C reversingthe decree of the trial Court on sucha technicality whichdid not in any manner affectthe merits of thecase. Section 99 of the Code of Civil Procedure, 1908 providesas under: D "99. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction: No decree shall be reversedor substantially varied, nor shall any casebe remanded, in appeal on account of any .. misjoinder[or non-joinder]of partiesor causes of actionE oranyerror,defector irregularity in any proceedings in the suit,not affectingthe merits of the caseor thejurisdiction of theCourt: [Provided that nothing in this section shall apply to non-joinder of anecessary party.] 11.Thus,the HighCourtalso erred in upholdingthe order of the DistrictJudge. 12. Accordingly, we allow this appeal, set aside the impugnedorders of the HighCourtand the DistrictJudge and restorethe order of the trial Courtdated8th December,1998 in JSCC No.5 of 1995 passed bythe Civil Judge,(J.D.), Hasanpur,Moradabad.No costs. F G Kalpana K. Tripathy Appealallowed. H |
