IMPORTANT POINT
Defect/ irregularity which does not affect merits of the case or jurisdiction of the court can be corrected under Order I rule 10 CPC and no suit should be reversed on such ground.

JUDGMENT

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 K