KULDEEP KUMAR DUBEY & ORS. versus RAMESH CHANDRA GOYAL (D) TH LRS.
[2015] 1 S.C.R. 543, Supreme Court of India, 2015
Outcome: Appeal(s) allowed (Granted)
Segment: Facts
[2015] 1 S.C.R. 543 
KULDEEP KUMAR DUBEY & ORS. 
v. 
RAMESH CHANDRA GOYAL (D) TH LRS. 
(Civil Appeal No. 1094 OF 2015) 
JANUARY 21, 2015 
[T.S. THAKUR AND ADARSH KUMAR 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 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. 
Allowing the appeal, the Court 
HELD: 1.lt is undisputed that appellant Nos.1 and 2 
E 
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 
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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 1 OJ [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. 
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. 
The Judgment of the Court was delivered by. 
E 
ADARSH KUMAR GOEL, J. 1. Leave granted. 
F 
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. 
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: 
"1. Whether the plaintiff is the landlord of the 
defendant? 
E 
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? 
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? 
G 
H
A 
546 
SUPREME COURT REPORTS 
[2015] 1 S.C.R. 
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 
8 
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, 
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 
E 
F 
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. 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
A 
6 
c 
D 
548 
SUPREME COURT REPORTS 
[2015] 1 S.C.R. 
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 
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 
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. 
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.] 
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. 
F 
G 
Kalpana K. Tripathy 
Appeal allowed. 
H