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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.  1094    OF 2015 (ARISING OUT OF SLP (C) NO.9059 OF 2013)

KULDEEP KUMAR DUBEY & ORS.                      …APPELLANTS

VERSUS

RAMESH CHANDRA GOYAL (D) TH LRS.       …RESPONDENTS

J U D G M E N T

ADARSH KUMAR GOEL, J.

1. Leave granted.

2. This appeal has been preferred against judgment and  

order dated 19th October, 2012 passed by the High court of  

Judicature at Allahabad in Civil Misc. Writ Petition No.52578  

of 2004.

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 their father who died during pendency  

of the suit and whether description of the appellants who

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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  

maintainability   

of the suit.

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4. Raj Kumar was owner of the suit property who died on  

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  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 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 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 :

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“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 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.75/- per month including house tax and  water tax? 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? 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  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, 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,   

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the trial Court passed a decree for eviction and for payment  

of  rent   

on 8th December, 1998.  

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  

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 the suit  

and  only  his  sons  had  such  a  right.   The  relevant  

observations are as under:

“Whereas  Shiv  Kumar  died  on  11.08.1996/04.02.1998  and  in  his  place,  his   two sons Kuldeep Kumar and Pradeep Kumar   and his wife Dayawati have been 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  Kuldeep  Kumar,  on  14.12.1988 by executing it and registering it,   which Will 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 Kuldeep Kumar and only they are  the  representatives,  owner  and  landlords  of   the property of Raj Kumar.  It is also pertinent   

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to mention this fact here that above Will is in   the  name  of  both  the  sons  Kuldeep  and  Pradeep  Kumar  of  Shiv  Kumar  and  it  also  cannot  be  considered  that  the  knowledge  of   the said Will was not known to Shiv Kumar. 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 Kuldeep Kumar   on 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 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  will  of  all  his  moveable  and  immoveable  properties  in  favour  of  Kuldeep  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 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 Kumar and Kuldeep  Kumar and this is also 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 the U.P. Act   13, 1972 in Misc. Suit No.20/93 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 3(j) U.P. Act 13, 1972, in that   also only Raj Kumar is  covered and since no  rent was paid to Shiv Kumar therefore he does   not fall in the definition of landlord.  Therefore,   

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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.”

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.

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  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.

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  

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maintain the suit for eviction.   Thus on admitted facts, only  

defect pointed out is of formal nature in description without,  

in any manner, 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 maintainability of the suit merely 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  

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 :

“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 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:

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[Provided  that  nothing  in  this  section  shall   apply  to   non-joinder of a necessary party.]

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 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.

……………………………………………J.           (T.S. THAKUR)

……………………………………………J.                       (ADARSH KUMAR GOEL)

NEW DELHI JANUARY 21, 2015

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