RAI CHAND DEWAN CHAND Vs. SHRI AUDH BIHARI LAL BHATNAGAR AND ANR.

JUDGEMENT

(1.) THIS is a tenant's revision petition arising out of eviction proceedings instituted under the East Punjab Urban Rent Restriction Act.

(2.) THE Respondents Audh Bihari Lal Bhatnagar and Brij Bihari Lal Bhatnagar filed an application under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 for the ejectment of the Petitioners claming that they were proprietors of the premises 101, Pursharthi Basti, Simla, that the Petitioners were tenants therein and that the accommodation was required bonafide by the Respondents for their own occupation. The application was resisted by the Petitioners who claimed that they were contractual tenants and were not liable to ejectment.

(3.) IN this revision petition, the first contention urged on behalf of the Petitioners is that the eviction application filed under Section 13 of the East Punjab Urban Rent Restriction Act is not maintainable inasmuch as it was not instituted by all the four landlords but by only two of them. It appears that the premises is owned by four persons, the Respondents being two of them. It is urged on behalf of the petitioners that all four proprietors should have joined in instituting the application and in case, as happened here, it was filed by only two, the remaining two should have been impleaded in the array of Respondents. In reply, learned Counsel for the Respondents urges that the contention should not be entertained in view of the principle incorporated in Order 1 Rule 13 of the Code of Civil Procedure, that is to say that if an objection on the ground of non -joinper of parties is not taken by the time the issues are settled, it must be deemed that such objection has been waived. It appears that the plea of non -joinder was raised by the Petitioners before the appellate Authority, and a similar objection to its being entertained was also raised by the Respondents before the Appellate Authority. Unfortunately, the Appellate Authority did not apply its mind to the controversy. It becomes necessary to decide then whether the plea of non -joinder should be entertained and if so, whether the eviction application should fail on the ground of non -joinder. In my opinion, the plea should not be entertained. If at all, it should have been raised during the trial of the eviction application before the Controller. There is no dispute that it could have been raised then. Had it been, the Respondents would have had an opportunity of meeting it and, if so advised, of removing the defect. It would also have been open to the Respondent to show that even though four persons were proprietors of the premises and two of them alone filed the application the latter were authorised in that behalf by the remaining two. The principle embodied in Order 1 Rule 13 is an issustration of the doctrine that a technical objection should not be allowed to defeat the rights of the parties if it is one which, had it been taken at an earlier stage, could have been cured. As long ago as 1834, the Privy Council in Dhurm Das Pandey v. Mussumat Shama Soondri Dibiah, (1841) 33 Moo. Ind. App. 229, 242 (PC) observed: