TMI Blog2015 (1) TMI 1345X X X X Extracts X X X X X X X X Extracts X X X X ..... ts Nos.1 and 2 are the sole owners of the property in question Held that:- 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 whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spect 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw. 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 evictio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntially 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. - - TaxTMI - TMITax - India ..... X X X X Extracts X X X X X X X X Extracts X X X X
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