Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Civil), 1094 of 2015, Judgment Date: Jan 21, 2015

                                                                  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 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.
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 :

"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,
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 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, 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 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 :

1 "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:
 [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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