BAL NIKETAN NURSERY SCHOOL v. KESARI PRASAD

The Judgment of the Court was delivered by

,,, NATARAJAN, J. The question falling for consideration in this appeal by special leave is whether the High Court has erred in law in quashing the order of eviction passed against the respondent by the Judge, Small Cause Court as confirmed by the Additional District Judge and remitting the suit to the trial court for fresh consideration in • ~ the event of the trial court allowing an application by the appellant under Order I Rule 10 Civil Procedure Code for' correcting the name of the plaintiff in the plaint.

The background of events to this Appeal may briefly be stated. The appellant Bal Niketan Nursery School is a recognised institution under the U.P. Basic Education Act, 1972, and is run and managed by a Society, "Smt. Chandramukhi Ram Saran Shiksha Samiti", regis· G -~ tered under the Societies Registration Act. Dr. Om Prakash is the Manager of the appellant school and also the Secretary of the regis· tered Society mentioned above. On 10.3. 1977 the Society purchaseJ a plot of the land adjoining the school together with four super siruc· tures (Khaprails) standing thereon in the name of the appellant school through its Manager Om Prakash Gupta. The super-structures were in H

• 514 SUPREME COURT REPORTS [1987) 3.S.C.R.

A the occupation of four tenants. The entire rental income derived from the tenants is being utilised for the purpose of running the school. Under the U.P. Urban Building Regulation of Letting, Rent and Evic- tion Act, 1972 (for short the Rent Act) the provisions of the Act would not apply to a property owned by a recognised educational institution if the whole of the income from the property is utilised for the B purposes of the institution. Section 2(1)(b) which provides for the exemption is in the following terms:

'"Nothing in this Act shall apply to any building belonging to or vested in a recognised institution, the whole of the income from which is utilised for the purpose of such institution.·· c As the appellant was in dire need of additional area for the grow- ing needs of the school and as the property acquired by the school attracted the 'Exemption Clause' in the Rent Act, the Manager of the school issued notices of termination of tenancy to the tenants on D 30.5.1977 under Section 106 of the Transfer of Property Act and demanded surrender of possession. As the tenants failed to surrender possession, the appellant filed separate suits against the four tenants for ejectment and payment of arrears of rent. The suits were filed in the name of the appellant school through its Manager Dr. Om Prakash. The Cause Title of the plaintiff in the plaint was given as E under:-

"Bal Niketan Nursery School, Near Ganj Gurhatti, Moradabad through Dr. Om Prakash, Manager of the School."

F All the four tenants including the respondent herein raised only two defences in the suit, namely, that the appellant school is not a recog- nised educational institution so as to be entitled to the benefit of Section 2( l)(b) of the Rent Act and secondly, that the notice of termi- nation of tenancy was not a valid notice because it had not been issued by an institution having juristic status. G The Small Cause Court consolidated all the four suits and held a joint trial and rejected both the contentions of the tenants and decreed the suits in favour of the school. The tenants preferred revisions against the judgment to the District Judge and the learned Judge con- firmed the judgment and decree of the Small Cause Court and dismis- H sed all the revisions.

p. 515 Copy page pinpoint

Thereafter the tenants filed writ petitions under Articles 2261227 A of the Constitution before the High Court of Allahabad. Before the High Court it was contended for the first time that the appellant school was not a juristic person and was not, therefore, entitled to file the suits through its Manager and as such the judgments of the Small Cause Court and the District Judge were ineffective and the decrees unenforceable. The counter argument of the school was that as a recognised institution under the U.P. Basic Education Act, 1972 it has

The High Court declined to uphold the contentions of the appel- lant school as in its view Clause (14) of the Constitution of the E Registered Society contained a specific provision to the following effect. "All the legal proceedings by the Society and against the Society will be done either by the Manager or by the Secretary or by a person authorised by them" and as such, the appellant school was not a juristic person and only the registered society had the authority and competence to file the suits. The High Court, therefore, held that the suits filed by the appellant school were not maintainable and conse- quently the judgments and decrees passed by the Small Cause Court and the District Judge were liable to the set aside and accordingly quashed them in three suits alone since the 4th suit (SCC Case No. 259/1977) had been compromised after the filing of the Writ Petition. In so far as the application under Order 1 Rule 10 is concerned, the '- )-High Court observed that the proper course for the appellant school was to move the Small Cause Court for getting the description of the plaintiff corrected and then pursue the proceedings for eviction. The High Court also gave directions to the Small Cause Court as to how the suits wer~ to be dealt with after amendment of the plaint in the follow- ing terms:- H

516 SUPREME COURT REPORTS [1987] 3.S.C.R.

A "It is made clear that in case the Judge Small Cause Court exercises the powers under Order 1 Rule 10, C.P.C. by correcting the description of the plaintiff, i.e. by getting the juristic person the Society substituted as plaintiff in the suit the defendant would be entitled to file additional written statement and the parties shall be afforded opportunity to lead fresh evidence in the case."

Aggrieved by the judgment of the High Court the appellant school has preferred this appeal by special leave. Mr. Kacker, learned counsel for the appellant advanced five contentions set out below to impugn the judgment of the High Court. The contentions are as follows:-

( 1) The appellant school being a recognised institution under the U.P. Basic Education Act, 1972 is a legal entity and is, therefore, entitled to file the suits in its own name.

D (2) Besides, the suit property has been purchased in the name of the appellant school and as the owner of the property the appel- '!l !ant is by itself entitled under law to file suits for seeking eject- ment of the tenants.

(3) Consequent upon the purchase of the land and super-struc- E tures and the vesting of possession in it, the appellant became the landlord of the tenants and the entire rental income is being used • for running the school. Therefore, in its capacity as the landlord ........ of the tenants the appellant school is entitled to file the suits for ejectment notwithstanding clause 14 of the Constitution of the -.... Registered Society. r F (4) Even if it is viewed that the Registered Society is alone en- titled to.file the suit Dr. Om Prakash who is competent to file the suit on behalf of the Registered Society has filed the suits on behalf of the school and as such the Society is fully represented by Dr. Om Prakash and thereby Clause (14) of the Constitution G of the Soceity stands satisfied.

BAL NIKETAN v. K. PRASAD [NATARAJAN. J.[ 517

... the courts below and remitting the suits to the Small Cause Court for fresh disposal after dealing with the petition under Order I A

Rule 10 C.P.C.

Learned counsel for the respondent refuted the contentions of Mr. Kacker and strenuously argued that the appellant is not a recog- B nised school but even if it is treated as a recognised institution under ... the U .P. Basic Education Act and even if the sale deed pertaining to the land and super-structures has been obtained in the name of the

~ Under the U.P. Basic Education Act, the appellant school has been granted recognition as a recognised institution and by reason of ~ such recognition the school is conferred certain rights and obliged to perform certain duties. One of the rights flowing from the recognition granted to the school is an exemption from the provisions of the Rent Act. Consequently, the appellant school has acquired rights by reason of the statLtory recognition given to it under tqe U.P. Basic Education Act ahd to that extent the appellant school siands clothed with legal status. It is not, therefore. a non-entity in the eye of law. Viewed from that perspective the appellant is entitled to file the snits through its G ... ~ Manager to seek the eviction of the tenants occupying the super- structures. Of course, the learned counsel for the respondent tried to • contend that certain proceedings have been initiated for impugning the recognition granted to the appellant school under the U.P. Basic Edu- cation Act and as such the appellant's status as a recognised institution cannot be taken for granted. We cannot countenance this argument H

' 518 SUPREME COURT REPORTS (1987] 3.S.C.R.

A because any proceedings instituted to impugn the recognition of the school subsequent to the filing of the suits cannot affect the status of the school at the time the suits were filed. Furthermore, the respon- dent has not produced any material to show that the recognition granted to the school has been subsequently withdrawn.

B Secondly, apart from the legal status acquired by the school as a recognised institution, it is admittedly the registered owner of the suit property even though the purchase price may have been provided by the society. It is not in dispute that the sale deed pertaining to the land and the super-structures has been obtained in the name of the school. Even as a benami owner of the property, the appellant is entitled in law to preserve and protect it and to institute actions in that behalf so long as they do not conflict with the rights of the society. As a corollary to this proposition it follows that the appellant constitutes the landlord of the tenants after the prop~rty was purchased in its name and rents from the tenants became to be collected. Once a jural relationship of landlord and tenants was formed between the appellant and the tenants by operation of law the appellant's right to initiate actions against the tenants for recovery of arrears of rent or recovery of possession of the leased property cannot be questioned or disputed.

Even if we are to close our eyes to the right of the appellant to file suits against the tenants in its capacity as a recognised institution or as the ostensible owner of the property or as the landlord of the ten- ants and are to judge the status of the appellant solely with reference to Clause ( 14) of the Constitution of the Society it may be noticed that Dr. Om Prakash is not only the Manager of the School but also the Secretary of the•Registered Society. The suits against the tenants have admittedly been filed by Dr. Om Prakash and even as per Clause (14) F of the Constitution of the Society he is competent to file suits on behalf of the Society. The school as well as the Registered Society, being institutions, they can file suits or defend .suits only through a compe- tent office-bearer man~ging the affairs of the school or the Registered Society. Inasmuch as the suits have been instituted by Dr. Om Prakash albeit as Manager of the school he has not ceased to be the Secretary of the Society and it can, therefore, will be taken that the suits have not been instituted by an incompetent person who is not empowered under the Constitution of the Society to file suits on behalf of the Society. There is, therefore, no merit in the belated objection raised by the • tenants that the suits are not maintainable in view of Clause ( 14) of the Constitution of the Society. The suits, even if not instituted in the name of the Registered Society, are nevertheless competent actions

BAL NIKETAN v. K. PRASAD [NATARAJAN, J.] 519

A. because they have been filed by Dr. Om Prakash who is competent to file suits on behalf of the Society also for recovering possession of the leased property to the school.

The last and final ground which needs setting out in some detail is that even if a rigid view is taken and it is to be held that the suits have

1. not been instituted in the name of the proper person viz. the Society, B r- the High Court should have seen that Order 1 Rule JO-has been expre· ssly provided in the Civil Procedure Code to meet with such situations ,.,.... so that the rendering of justice is not hampered. The Rule provides that if a suit has been instituted in the name of a wrong person as plaintiff or if there is a doubt as to whether the suit has been instituted in the name of the right plaintiff the court may, at any stage of the suit, if it is satisfied that the suit has been instituted due to a bona fide C ). mistake and that is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the court thinks just. The scope and effect of Order I Rule 10 has been considered in numerous cases and there is a plethora of decisions laying down the ratio that if the court is D -r satisfied that a bona fide mistake has occurred in the filing of the suit in the name of the wrong person then the court should set right matters in exercise of its powers under Order I Rule 10 and promote the cause of justice. The courts have gone so far as to hold that even if the suit had been instituted in the name of a person who had no competence to file the suit, the courts should set right matters by ordering the addition or E _.,.__ subsitution of the proper plalntiff for ensuring the due dispensation of ---··justice. We may only refer to a few decisions in this behalf.

In Hughes v. The Pump House Hotel Company Limited (No. 2), ~ [ 1902] 2 Kings Bench 485) a dispute was riased regarding the compe- tence of the plaintiff to file a suit because doubts were cast as to whether the plaintiff had made an absolute assignment of his claim against the defendants, or only an assignment by way of charge. There- upon an application was made under Order XVI Rule 2 (correspond- ing to Order 1 Rule 10 CPC) for substitution of another person as plaintiff. The application was allowed and that was upheld by the ~ ~:ourt. of Appeal and it was pointed out that the fact that the original plamttff had no cause of action would not take away the jurisdiction of the court to order the substitution of another person as plaintiff.

In Krishna Bai v. The Collector and Government Agent, Tanjore & Others, (ILR 30 Madras 419),_ when it was found that a suit for e.jectment of a defendant had been brought by the Collector and H

520 'SUPREME COURT REPORTS [1987] 3.S.C.R.

A Government Agent due to a bona fide mistake instead of the bene- -" ficiaries of the estate, the court allowed an application for substitution of the correct plaintiff and it was further held that the fact that the Collector had no right to institute the suir would not stand in the way of the court ordering the substitution of the correct plaintiff.

In Karri Somalu v. Thimmalapalli Venkataswamy and others, F ( 1963 2 A. W .R~ 138) it was held that the expression "wrong person" in Order 1 Rule 10 cannot be confined merely to a person wrongly described but would also extend to include a person whose nam~ ought nol lo have figures as plaintiff for want of right to file the suit and that the object of the Rule is to save suits instituted honestly although in the name of the wrong person as plaintiff and to ensure that honest plaintiffs do not suffer.

In Udit Narain Singh Malpaharia v. Additional Member Board of Revenue, Bihar and another, (A.LR. 1963 SC 786) it was held that in proceedings for a writ of certiorari it is not only the Tribunal or Authority whose order is sought to be quashed but also the parties in whose favour the said order is issued who are necessary parties and

BAL NJKETAN v. K. PRASAD [NATARAJAN, J [ 521

that it is in the discretion of the court to add or implead proper parties for completely settling all the questions that may be involved in the controversy either suo motu or on the application of a party to the writ or on application filed at the instance of such proper party.

"Respondent I is shown to be the Secretary to the Govern- ment of India, Ministry of Home Affairs. If there was tech- nical error in the draftsmanship of the petition by a lawyer, D a Forester a Class IV low grade servant should not have been made to suffer. An oral request to correct the descrip- tion of the first respondent would have satisfied the pro- cedural requirement. By raising and accepting such a con- tention, after a lapse of six years, the law is brought into ridicule. The court could have conveniently read the cause E

- title as Government of India which means Union of India through the Secretary, Ministry of Home Affairs instead of the description set out in the writ petition and thi> very petition would be competent by any standard. 1 he conten- tion is all the more objectionable for the additional reason that the appointing authority of the appellant, the Chief F Commissioner of the Government of Tripura as well the Chief Forest Officer who passed the impugned order were impleaded and they represented the administration ofTrip- ura Government as well as the concerned officers. There- fore, not only the petition as drawn up was compet~nt but no bone of contention could be taken about its incom- G petence."

Having regard to this settled position of law the High Court ought not to have sustained the objection raised by the tenants regard- ing the competency of the appellant to file the suits and quashed the orders of eviction concurrently passed by the Small Cause Court and H

Registered Society represented by its Secretary Dr. Om Prakash who is already on record, also as a party and disposed of the writ petitions on their merits. · B We, therefore, allow the appeal and remit the matter to the High Court for disposal on merits after allowing the application filed under ...-/ Order I Rule JO CPC by the appeliant and ordering Smt. Chandra- mukhi Ram Saran Shiksha Samiti through its Secretary Dr. Om Prakash to be also added as a plaintiff in the suits so as to make it clear - C that Dr. Om Prakash is representing not only the appellant's school but also the Registered Society and dispose of the writ petitions on J.. merits after the formal amendments have been carried out in the pleadings. The parties are directed to bear their respective costs.

N.P.V. Appeal allowed.