{"id":210389,"date":"1987-07-15T00:00:00","date_gmt":"1987-07-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bal-niketan-nursery-school-vs-kesari-prasad-on-15-july-1987"},"modified":"2017-09-01T11:32:13","modified_gmt":"2017-09-01T06:02:13","slug":"bal-niketan-nursery-school-vs-kesari-prasad-on-15-july-1987","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bal-niketan-nursery-school-vs-kesari-prasad-on-15-july-1987","title":{"rendered":"Bal Niketan Nursery School vs Kesari Prasad on 15 July, 1987"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Bal Niketan Nursery School vs Kesari Prasad on 15 July, 1987<\/div>\n
Equivalent citations: 1987 AIR 1970, \t\t 1987 SCR (3) 510<\/div>\n
Author: S Natrajan<\/div>\n
Bench: Natrajan, S. (J)<\/div>\n
           PETITIONER:\nBAL NIKETAN NURSERY SCHOOL\n\n\tVs.\n\nRESPONDENT:\nKESARI PRASAD\n\nDATE OF JUDGMENT15\/07\/1987\n\nBENCH:\nNATRAJAN, S. (J)\nBENCH:\nNATRAJAN, S. (J)\nMUKHARJI, SABYASACHI (J)\n\nCITATION:\n 1987 AIR 1970\t\t  1987 SCR  (3) 510\n 1987 SCC  (3) 587\t  JT 1987 (3)\t 93\n 1987 SCALE  (2)67\n\n\nACT:\n    Civil Procedure Code, 1908--Order 1 Rule 10---Bona\tfide\nmistake\t in  filing suit in name of  wrong  person--Duty  of\nCourt to set right mistake by ordering addition\/substitution\nof the proper plaintiff.\n    U.P. Basic Education Act, 1972--School recognised  under\nthe  Act--Exempted from provisions of Rent  Act--Proceedings\ninstituted  to impugn recognition of school--Do\t not  affect\nstatus\tof  school  at time eviction  suits  were  filed  by\nschool.\n    U.P.  Urban\t Building Regulation of\t Letting,  Rent\t and\nEviction Act, 1972--Section 2(1)(b)--Landlord--A  recognised\nschool--Exempted  from\tprovisions of Act entitled  to\tfile\nsuits through Manager for eviction of tenants.\n\n\n\nHEADNOTE:\n    Section 2(1)(b) of the U.P. Urban Building Regulation of\nLetting, Rent and Eviction Act, 1972 lays down that \"nothing\nin  this  Act shall apply to any building  belonging  to  or\nVested in a recognised institution, the whole of the  income\nfrom which is utilised for the purpose of such institution.\"\n    The manager of the appellant school, a recognised insti-\ntution\tunder  the U.P. Basic Education Act, 1972,  run\t and\nmanaged by a Registered Society issued notice of termination\nof  tenancy  to\t the four tenants  of  the  super-structures\n(Khaprails) purchased by it, under Section 106 of the Trans-\nfer of Property Act and demanded surrender of possession. As\nthe tenants failed to surrender possession, he filed sepa-\nrate  suits against the four tenants for ejectment and\tpay-\nment  of arrears of rent. The respondent and the other\tten-\nants  contended that the school was not a recognised  educa-\ntional\tinstitution  entitled  to  the\tbenefit\t of  Section\n2(1)(b)\t of the U.P. Urban Building Regulation\tof  Letting,\nRent and Eviction Act, 1972 and that the notice of  termina-\ntion of tenancy was not valid. The trial court rejected\t the\ncontentions  of the tenants and decreed the suits in  favour\nof  the school. The revisional court confirmed the  judgment\nand decree of the trial court and dismissed all the revision\npetitions.\n\t    511\n    In\tthe  writ petitions before the High  Court,  it\t was\ncontended  for the first time that the appellant school\t was\nnot  a juristic person and was not, therefore,\tentitled  to\nfile  the  suits through its manager. It  was  submitted  on\nbehalf of the school that as a recognised institution  under\nthe U.P. Basic Education Act, 1972, it has juristic  status,\nthat  the suit had been instituted by a person who  was\t not\nonly the manager of the school but also the secretary of the\nRegistered  Society and as such the suits were\tfully  main-\ntainable  under\t law.  The appellant school,  also  filed  a\npetition  under Order 1 Rule 10 of Code of  Civil  Procedure\nfor amending the plaint by correcting the name of the plain-\ntiff into the name of the Society by its secretary in  place\nof the name of the school by its manager.\n    The High Court held that in view of the specific  provi-\nsion  in Clause (14) of the Constitution of  the  Registered\nSociety to the effect that \"all the legal proceedings by the\nSociety\t and against the Society will be done either by\t the\nManager\t or  by the Secretary or by a person  authorised  by\nthem\",\tthe appellant school was not a juristic\t person\t and\nonly the Registered Society had the authority and competence\nto file the suits and that the suits filed by the  appellant\nschool\twere not maintainable. It quashed the judgments\t and\ndecrees passed by the courts below in three suits since\t the\nfourth\tsuit  had been compromised after the filing  of\t the\nwrit petition.\n    Insofar  as\t the application under Order 1 Rule  10\t was\nconcerned the High Court held that the proper course for the\nappellant school was to move the trial court for getting the\ndescription  of the appellant corrected and then pursue\t the\nproceedings for eviction.\nAllowing the appeal by special leave, this Court,\n    HELD: 1. It is well settled that if the court is  satis-\nfied that a bona fide mistake has occurred in the filing  of\nthe  suits in the name of the wrong person, then  the  court\nshould\tset  right matters in exercise of its  powers  under\nOrder 1 Rule 10 and promote the cause of justice. The Courts\nhave also held that even if the suit had been instituted  in\nthe name of a person who had no competence to file the suit,\nthe courts should set right matters by ordering the addition\nor substitution of the proper plaintiff for ensuring the due\ndispensation of justice. [519D-E]\n    2.1\t By reason of recognition granted under\t U.P.  Basic\nEducation  Act,\t 1972, the appellant school  stands  clothed\nwith  legal  status, and is not a non-entity in the  eye  of\nlaw. [517G]\n512\n    2.2 Any proceedings instituted to impugn the recognition\nof  the school subsequent to the filing of the suits  cannot\naffect\tthe status of the school at the time the suits\twere\nfiled. [518A]\n    2.3\t The appellant constitutes the landlord of the\tten-\nants after the property was purchased in its name and  rents\nfrom  the tenants came to be collected. Once a\tjural  rela-\ntionship between landlord and tenants was formed between the\nappellant  and the tenants by operation of law,\t the  appel-\nlant's\tright  to initiate actions against the\ttenants\t for\nrecovery of arrears of rent or recovery of possession of the\nleased property cannot be questioned or disputed. [518C-D]\n    2.4 Even if the status of the appellant is to be  judged\nsolely with reference to clause (14) of the Constitution  of\nthe Society, the person who filed the suits is not only\t the\nmanager of the school but also the Secretary of the  Society\nand even as per this clause he is competent to file suits on\nbehalf of the Society. The suits, even if not instituted  in\nthe  name of Registered Society, are nevertheless  competent\nactions\t because they have been filed by the Manager of\t the\nschool\twho  is\t competent to file suits on  behalf  of\t the\nSociety also for recovering possession of the leased proper-\nty. [518E-H; 519A]\n    2.5\t The appellant is, therefore, entitled to  file\t the\nsuits  through its Manager to seek the eviction of the\tten-\nants occupying the superstructure. [517]\n    3. The High Court was in error in sustaining the belated\nobjection. taken by the tenants regarding the competence  of\nthe appellant to file the suits and quashing the decrees for\neviction passed against the tenants and remanding the  suits\nto the trial court for fresh disposal, after first consider-\ning whether the suits had been instituted in the name of the\nwrong  plaintiff due to a bona fide mistake and whether\t the\nmistake\t called for rectification by allowing  the  petition\nfiled under Order 1 Rule 10 Code of Civil Procedure.  [517D-\nE]\n    4.\tAppeal allowed and the matter remitted to  the\tHigh\nCourt for disposal on merits after allowing the\t application\nfiled  under Order 1 Rule 10 Code of Civil Procedure by\t the\nappellant and ordering the Society through its Secretary  to\nbe  also added as a plaintiff in the suits so as to make  it\nclear that the person who has filed the suits is  represent-\ning  not only the appellant school but also  the  Registered\nSociety. [522A-B]\nHughes v. The Pump House Hotel Company Limited (No. 2),\n 513\n[1902]\t2 Kings Bench 485; Krishna Bai v. The Collector\t and\nGovernment Agent, Tanjore & Others, ILR 30 Madras 419; Sitla\nBux  Singh  v. Mahabir Prasad, AIR 1936 Oudh  275;  Dinanath\nKumar v. Nishi Kanta Kumar and Others, A.I.R. 1952  Calcutta\n102;  Laxmi  Kumar Srinivas Das v. Krishnaram  Baldev  Bank,\nLashkar\t and another, A.I.R. 1954 M.B. 156; Karri Somalu  v.\nThimmalapalli Venkataswamy and others, [1963] 2 A.W.R.\t138;\nUdit  Narain Singh Malpaharia v. Additional Member Board  of\nRevenue,  Bihar and<\/a> another, A.I.R. 1963 SC 786\t and  Murari\nMohan Deb v. Secretary<\/a> to Government of India, [1985] 3\t SCC\n120, referred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
    CIVIL  APPELLATE JURISDICTION: Civil Appeal No.  55A  of
\n1987.\n<\/p>\n
    From  the  Judgment and Order dated 8.10.  1985  of\t the
\nAllahabad High Court in Civil Misc. Petn. No. 2278 of 1981.
\n    S.N.  Kacker, R.N. Sharma, J.K Jain and N.N. Sharma\t for
\nthe Appellant.\n<\/p>\n
Gopal Singh and L.R. Singh for the Respondent.
\nThe Judgment of the Court was delivered by
\n    NATARAJAN, J. The question failing for consideration  in
\nthis  appeal by special leave is whether the High Court\t has
\nerred  in  law\tin quashing the\t order\tof  eviction  passed
\nagainst\t the respondent by the Judge, Small Cause  Court  as
\nconfirmed by the Additional District Judge and remitting the
\nsuit to the trial court for fresh consideration in the event
\nof the trial court allowing an application by the  appellant
\nunder  Order I Rule 10 Civil Procedure Code  for  correcting
\nthe name of the plaintiff in the plaint.\n<\/p>\n
    The\t background of events to this Appeal may briefly  be
\nstated. The appellant Bal Niketan Nursery School is a recog-
\nnised institution under the U.P. Basic Education Act,  1972,
\nand is run and managed by a Society, “Smt. Chandramukhi\t Ram
\nSaran Shiksha Samiti”, registered under the Societies Regis-
\ntration Act. Dr. Om Prakash is the Manager of the  appellant
\nschool\tand  also the Secretary of  the\t registered  Society
\nmentioned  above. On 10.3.1977 the Society purchased a\tplot
\nof  the land adjoining the school together with\t four  super
\nstructures  (Khaprails) standing thereon in the name of\t the
\nappellant  school through its Manager Om Prakash Gupta.\t The
\nsuper-structures were in
\n514<\/span>
\nthe  occupation\t of four tenants. The entire  rental  income
\nderived\t from the tenants is being utilised for the  purpose
\nof running the school. Under the U.P. Urban Building Regula-
\ntion of Letting, Rent and Eviction Act, 1972 (for short\t the
\nRent  Act)  the provisions of the Act would not apply  to  a
\nproperty  owned by a recognised educational  institution  if
\nthe  whole of the income from the property is  utilised\t for
\nthe  purposes  of  the institution.  Section  2(1)(b)  which
\nprovides for the exemption is in the following terms:\n<\/p>\n
\t      “Nothing\tin  this  Act  shall  apply  to\t any
\n\t      building\t belonging   to\t or  vested   in   a
\n\t      recognised  institution,\tthe  whole  of\t the
\n\t      income from which is utilised for the  purpose
\n\t      of such institution.”<\/p><\/blockquote>\n
    As the appellant was in dire need of additional area for
\nthe growing needs of the school and as the property acquired
\nby  the school attracted the ‘Exemption Clause’ in the\tRent
\nAct, the Manager of the school issued notices of termination
\nof tenancy to the tenants on 30.5. 1977 under Section 106 of
\nthe  Transfer  of  Property Act and  demanded  surrender  of
\npossession.  As the tenants failed to surrender\t possession,
\nthe appellant filed separate suits against the four  tenants
\nfor ejectment and payment of arrears of rent. The suits were
\nfiled in the name of the appellant school through its Manag-
\ner  Dr. Om Prakash. The Cause Title of the plaintiff in\t the
\nplaint was given as under:-\n<\/p>\n
\t      “BaI   Niketan  Nursery  School,\t Near\tGanj
\n\t      Gurhatti,\t Moradabad through Dr.\tOm  Prakash,
\n\t      Manager of the School.”\n<\/p><\/blockquote>\n
All the four tenants including the respondent herein  raised
\nonly  two defences in the suit, namely, that  the  appellant
\nschool is not a recognised educational institution so as  to
\nbe  entitled to the benefit of Section 2(1)(b) of  the\tRent
\nAct and secondly, that the notice of termination of  tenancy
\nwas not a valid notice because it had not been issued by  an
\ninstitution having juristic status.\n<\/p>\n
    The\t Small Cause Court consolidated all  the-four  suits
\nand held a joint trial and rejected both the contentions  of
\nthe  tenants and decreed the suits in favour of the  school.
\nThe tenants preferred revisions against the judgment to\t the
\nDistrict Judge and the learned Judge confirmed the  judgment
\nand  decree of the Small Cause Court and dismissed  all\t the
\nrevisions.\n<\/p>\n
 515<\/span><\/p>\n
    Thereafter the tenants filed writ petitions under  Arti-
\ncles  226\/227 of the Constitution before the High Court\t ,of
\nAllahabad.  Before the High Court it was contended  for\t the
\nfirst  time  that the appellant school was  not\t a  juristic
\nperson\tand was not, therefore, entitled to file  the  suits
\nthrough\t its Manager and as such the judgments of the  Small
\nCause Court and the District Judge were ineffective and\t the
\ndecrees\t unenforceable. The counter argument of\t the  school
\nwas  that as a recognised institution under the\t U.P.  Basic
\nEducation  Act, 1972 it has juristic status and\t furthermore
\nit  is\tthe registered owner of the  suit  property,  having
\nobtained  the sale deed in its own name and over  and  above
\nall these the suit had been instituted by Dr. Om Prakash who
\nwas  not only the Manager of the school but also the  Secre-
\ntary  of the Registered Society and as such, the suits\twere
\nfully maintainable under law and consequently the  judgments
\nand decrees of the Small Cause Court and the District  Judge
\nwere perfectly valid and enforceable. Besides putting  forth
\nsuch  contentions, the appellant school, by way of  abundant
\ncaution\t also filed a petition under Order 1 Rule  10  Civil
\nProcedure  Code\t for amending the plaint by  correcting\t the
\nname  of  the  plaintiff into Smt.  Chandramukhi  Ram  Saran
\nShiksha Samiti by Secretary Om Prakash in place of the\tname
\nof the Bal Niketan Nursery School by Manager Dr. Om Prakash.
\n    The High Court declined to uphold the contentions of the
\nappellant school as in its view Clause (14) of the Constitu-
\ntion  of the Registered Society contained a specific  provi-
\nsion to the following effect. “All the legal proceedings  by
\nthe  Society and against the Society will be done either  by
\nthe Manager or by the Secretary or by a person authorised by
\nthem”  and as such, the appellant school was not a  juristic
\nperson and only the registered society.had the authority and
\ncompetence  to\tfile the suits. The High  Court,  therefore,
\nheld  that the suits filed by the appellant school were\t not
\nmaintainable  and  consequently the  judgments\tand  decrees
\npassed by the Small Cause Court and the District Judge\twere
\nliable\tto  the set aside and accordingly  quashed  them  in
\nthree suits alone since the 4th suit (SCC Case No. 259\/1977)
\nhad been compromised after the filing of the Writ  Petition.
\nIn  so far as the application under Order 1 Rule 10 is\tcon-
\ncerned,\t the High Court observed that the proper course\t for
\nthe  appellant school was to move the Small Cause Court\t for
\ngetting the description of the plaintiff corrected and\tthen
\npursue\tthe  proceedings for eviction. The High\t Court\talso
\ngave directions to the Small Cause Court as to how the suits
\nwere  to be dealt with after amendment of the plaint in\t the
\nfollowing terms:-\n<\/p>\n
516<\/span><\/p>\n
\t      “It is made clear that in case the Judge Small
\n\t      Cause Court exercises the powers under Order 1
\n\t      Rule 10, C.P.C. by correcting the\t description
\n\t      of the plaintiff, i.e. by getting the juristic
\n\t      person the Society substituted as plaintiff in
\n\t      the  suit the defendant would be\tentitled  to
\n\t      file  additional\twritten\t statement  and\t the
\n\t      parties shall be afforded opportunity to\tlead
\n\t      fresh evidence in the case.”\n<\/p><\/blockquote>\n
    Aggrieved  by the judgment of the High Court the  appel-\n<\/p><\/blockquote>\n
lant school has preferred this appeal by special leave.\t Mr.
\nKacker,\t learned  counsel for the  appellant  advanced\tfive
\ncontentions set out below to impugn the judgment of the High
\nCourt. The contentions are as follows:-\n<\/p>\n
\t      (1)  The appellant school being  a  recognised
\n\t      institution  under  the U.P.  Basic  Education
\n\t      Act, 1972 is a legal entity and is, therefore,
\n\t      entitled to file the suits in its own name.
\n\t      (2)  Besides,  the  suit\tproperty  has\tbeen
\n\t      purchased in the name of the appellant  school
\n\t      and as the owner of the property the appellant
\n\t      is by itself entitled under law to file  suits
\n\t      for seeking ejectment of the tenants.
\n\t      (3)  Consequent upon the purchase of the\tland
\n\t      and   super-structures  and  the\tvesting\t  of
\n\t      possession  in  it, the appellant\t became\t the
\n\t      landlord of the tenants and the entire  rental
\n\t      income  is being used for running the  school.
\n\t      Therefore, in its capacity as the landlord  of
\n\t      the  tenants the appellant school is  entitled
\n\t      to    file    the\t   suits    for\t   ejectment
\n\t      notwithstanding clause 14 of the\tConstitution
\n\t      of the Registered Society.\n<\/p><\/blockquote>\n
\t      (4)  Even if it is viewed that the  Registered
\n\t      Society is alone entitled to-file the suit Dr.
\n\t      Om  Prakash who is competent to file the\tsuit
\n\t      on behalf of the Registered Society has  filed
\n\t      the suits on behalf of the school and as\tsuch
\n\t      the  Society  is fully represented by  Dr.  Om
\n\t      Prakash\tand  thereby  Clause  (14)  of\t the
\n\t      Constitution of the Soceity stands satisfied.
\n\t      (5)  Even\t if  a hyper-technical\tview  is  to
\n\t      prevail  requiring the suits to be filed\tonly
\n\t      in the name of the Registered Society  through
\n\t      its  Secretary\/Manager, the High Court  should
\n\t      have  allowed the petition under Order 1\tRule
\n\t      10  C.P.C. and disposed of the Writ  Petitions
\n\t      on  merits instead of quashing the  concurrent
\n\t      findings of
\n\t       517<\/span>
\n\t      the  courts below and remitting the  suits  to
\n\t      the Small Cause Court for fresh disposal after
\n\t      dealing  with the petition under Order 1\tRule
\n\t      10 C.P.C.\n<\/p><\/blockquote>\n
    Learned  counsel for the respondent refuted the  conten-\n<\/p><\/blockquote>\n
tions  of Mr. Kacker and strenuously argued that the  appel-
\nlant is not a recognised school but even if it is treated as
\na recognised institution under the U.P. Basic Education\t Act
\nand even if the sale deed pertaining to the land and  super-
\nstructures  has been obtained in the name of the school,  it
\nis only the Registered Society which can lawfully  institute
\nsuits  on behalf of the school or defend actions against  it
\nand that Clause (14) of the Constitution of the Society\t has
\noverriding  effect, and hence the suits filed by the  appel-
\nlant school are not maintainable.\n<\/p>\n
    Having given our careful consideration to the  arguments
\nof the learned counsel and the view taken by the High  Court
\nwe  are of the opinion that the High Court was in  error  in
\nsustaining  the belated objection taken by the\ttenants\t re-
\ngarding\t the competence of the appellant to file  the  suits
\nand  quashing  the decrees for eviction passed\tagainst\t the
\ntenants and remanding the suits to the Small Cause Court for
\nfresh disposal after first considering whether the suits had
\nbeen instituted in the name of the wrong plaintiff due to  a
\nbona fide mistake and whether the mistake calls for rectifi-
\ncation by allowing the petition filed under Order 1 Rule  10
\nC.P.C.\tThe reasons which have prompted us to come  to\tthis
\nconclusion are manifold and may be enunciated in the follow-
\ning paragraphs.\n<\/p>\n
    Under the U.P. Basic Education Act, the appellant school
\nhas been granted recognition as a recognised institution and
\nby  reason of such recognition the school is conferred\tcer-
\ntain  rights and obliged to perform certain duties.  One  of
\nthe  rights  flowing  from the recognition  granted  to\t the
\nschool is an exemption from the provisions of the Rent\tAct.
\nConsequently,  the appellant school has acquired  rights  by
\nreason\tof the statutory recognition given to it  under\t the
\nU.P.  Basic Education Act and to that extent  the  appellant
\nschool\tstands clothed with legal status. It is not,  there-
\nfore,  a  non-entity  in the eye of law.  Viewed  from\tthat
\nperspective  the  appellant is entitled to  file  the  suits
\nthrough\t its  Manager to seek the eviction  of\tthe  tenants
\noccupying the superstructures. Of course, the learned  coun-
\nsel  for the respondent tried to contend that  certain\tpro-
\nceedings  have been initiated for impugning the\t recognition
\ngranted to the appellant school under the U.P. Basic  Educa-
\ntion Act and as such the appellant’s status as a  recognised
\ninstitution  cannot be taken for granted. We cannot  counte-
\nnance this argument
\n 518<\/span>
\nbecause any proceedings instituted to impugn the recognition
\nof  the school subsequent to the filing of the suits  cannot
\naffect\tthe status of the school at the time the suits\twere
\nfiled.\tFurthermore,  the respondent has  not  produced\t any
\nmaterial to show that the recognition granted to the  school
\nhas been subsequently withdrawn.\n<\/p>\n
    Secondly,  apart from the legal status acquired  by\t the
\nschool\tas  a recognised institution, it is  admittedly\t the
\nregistered  owner of the suit property even though the\tpur-
\nchase price may have been provided by the society. It is not
\nin dispute that the sale deed pertaining to the land and the
\nsuper-structures  has  been  obtained in  the  name  of\t the
\nschool.\t Even as a benami owner of the property, the  appel-
\nlant  is entitled in law to preserve and protect it  and  to
\ninstitute  actions  in that behalf so long as  they  do\t not
\nconflict  with the rights of the society. As a corollary  to
\nthis  proposition it follows that the appellant\t constitutes
\nthe landlord of the tenants after the property was purchased
\nin its name and rents from the tenants became to be collect-
\ned.  Once a jural relationship of landlord and\ttenants\t was
\nformed between the appellant and the tenants by operation of
\nlaw  the appellant’s right to initiate actions\tagainst\t the
\ntenants\t for  recovery\tof arrears of rent  or\trecovery  of
\npossession  of the leased property cannot be  questioned  or
\ndisputed.\n<\/p>\n
    Even  if  we are to close our eyes to the right  of\t the
\nappellant to file suits against the tenants in its  capacity
\nas  a recognised institution or as the ostensible  owner  of
\nthe  property or as the landlord of the tenants and  are  to
\njudge  the status of the appellant solely with reference  to
\nClause\t(14)  of the Constitution of the Society it  may  be
\nnoticed\t that Dr. Om Prakash is not only the Manager of\t the
\nSchool but also the Secretary of the Registered Society. The
\nsuits against the tenants have admittedly been filed by\t Dr.
\nOm  Prakash and even as per Clause (14) of the\tConstitution
\nof  the Society he is competent to file suits on  behalf  of
\nthe  Society. The school as well as the Registered  Society,
\nbeing institutions, they can file suits or defend-suits only
\nthrough\t a competent office-bearer managing the\t affairs  of
\nthe school or the Registered Society. Inasmuch as the  suits
\nhave been instituted by Dr. Om Prakash albeit as Manager  of
\nthe  school  he has not ceased to be the  Secretary  of\t the
\nSociety and it can, therefore, will be taken that the  suits
\nhave not been instituted by an incompetent person who is not
\nempowered  under  the Constitution of the  Society  to\tfile
\nsuits  on  behalf of the Society. There\t is,  therefore,  no
\nmerit  in the belated objection raised by the  tenants\tthat
\nthe suits are not maintainable in view of Clause (14) of the
\nConstitution  of the Society. The suits, even if not  insti-
\ntuted  in the name of the Registered Society, are  neverthe-
\nless competent actions
\n 519<\/span>
\nbecause they have been filed by Dr. Om Prakash who is compe-
\ntent to file suits on behalf of the Society also for  recov-
\nering possession of the leased property to the school.
\n    The\t last  and final ground which needs setting  out  in
\nsome detail is that even if a rigid view is taken and it  is
\nto  be held that the suits have not been instituted  in\t the
\nname  of the proper person viz. the Society, the High  Court
\nshould\thave  seen that Order 1 Rule 10-has  been  expressly
\nprovided  in  the  Civil Procedure Code to  meet  with\tsuch
\nsituations so that the rendering of justice is not hampered.
\nThe Rule provides that if a suit has been instituted in\t the
\nname  of a wrong person as plaintiff or if there is a  doubt
\nas  to whether the suit has been instituted in the  name  of
\nthe right plaintiff the court may, at any stage of the suit,
\nif it is satisfied that the suit has been instituted due  to
\na bona fide mistake and that is necessary for the determina-
\ntion of the real matter in dispute so to do, order any other
\nperson\tto  be substituted or added as plaintiff  upon\tsuch
\nterms  as  the court thinks just. The scope  and  effect  of
\nOrder  1 Rule 10 has been considered in numerous  cases\t and
\nthere is a plethora of decisions laying down the ratio\tthat
\nif  the\t court\tis satisfied that a bona  fide\tmistake\t has
\noccurred in the filing of the suit in the name of the  wrong
\nperson\tthen the court should set right matters in  exercise
\nof its powers under Order 1 Rule 10 and promote the cause of
\njustice. The courts have gone so far as to hold that even if
\nthe suit had been instituted in the name of a person who had
\nno competence to file the suit, the courts should set  right
\nmatters\t by  ordering the addition or  substitution  of\t the
\nproper\tplaintiff for ensuring the due dispensation of\tjus-
\ntice. We may only refer to a few decisions in this behalf.
\n    In\tHughes v. The Pump House Hotel Company Limited\t(No.\n<\/p>\n
2), [1902] 2 Kings Bench 485) a dispute was raised regarding
\nthe  competence\t of  the plaintiff to file  a  suit  because
\ndoubts\twere  cast as to whether the plaintiff had  made  an
\nabsolute assignment of his claim against the defendants,  or
\nonly  an assignment by way of charge. Thereupon an  applica-
\ntion was made under Order XVI Rule 2 (corresponding to Order
\n1 Rule 10 CPC) for substitution of another person as  plain-
\ntiff. The application was allowed and that was upheld by the
\nCourt  of Appeal and it was pointed out that the  fact\tthat
\nthe original plaintiff had no cause of action would not take
\naway the jurisdiction of the court to order the substitution
\nof another person as plaintiff.\n<\/p>\n
    In\tKrishna Bai v. The Collector and  Government  Agent,
\nTanjore & Others, (ILR 30 Madras 419) when it was found that
\na suit for ejectment of a defendant had been brought by\t the
\nCollector and
\n520<\/span>
\nGovernment  Agent due to a bona fide mistake instead of\t the
\nbeneficiaries  of the estate, the court allowed an  applica-
\ntion  for substitution of the correct plaintiff and  it\t was
\nfurther\t held that the fact that the Collector had no  right
\nto  institute  the suit would not stand in the\tway  of\t the
\ncourt ordering the substitution of the correct plaintiff.
\n    In\tSitla  Bux Singh v. Mahabir Prasad, (AIR  1936\tOudh\n<\/p>\n
275) it was held that where a person prohibited from dealing
\nin  actionable claim under Section 136 Transfer of  Property
\nAct  obtained  an assignment of a bond through a  bona\tfide
\nmistake and instituted a suit on the basis of the same,\t the
\nprovisions  of Order 1 Rule 10 would apply and the  assignor
\ncan be substituted in place of the assignee as plaintiff and
\nallowed to continue the suit.\n<\/p>\n
    In\tDinanath  Kumar\t v. Nishi Kanta\t Kumar\tand  Others,
\n(A.I.R. 1952 Calcutta 102) the court allowed an\t application
\nunder Order 1 Rule 10 CPC and permitted a person who claimed
\nthat he was the real owner of the property and the  original
\nplaintiff  was only a benamidar to be added as plaintiff  in
\norder to avoid multiplicity of proceedings and that he was a
\nnecessary party to the proceedings.\n<\/p>\n
    In\tLaxmikumar Srinivas Das v. Krishnaram  Baldev  Bank,
\nLashkar and another, (A.I.R. 1954 M.B. 156) it was held that
\nthe  words “where a suit has been instituted in the name  of
\nthe wrong person as plaintiff” must be construed to  include
\nthose suits which the instituted by persons who had no right
\nto  do so and that the fact that the person instituting\t the
\nsuit had no cause of action would not take away the  court’s
\njurisdiction to order substitution of another as plaintiff.
\n    In\tKarri Somalu v. Thimmalapalli Venkataswamy and\toth-
\ners,  (1963  2 A.W.R. 138) it was held that  the  expression
\n“wrong person” in Order 1 Rule 10 cannot be confined  merely
\nto  a  person  wrongly described but would  also  extend  to
\ninclude\t a  person whose name ought not to have\t figures  as
\nplaintiff  for want of right to file the suit and  that\t the
\nobject\tof  the Rule is to save\t suits\tinstituted  honestly
\nalthough in the name of the wrong person as plaintiff and to
\nensure that honest plaintiffs do not suffer.
\n    In\tUdit  Narain Singh Malpaharia v.  Additional  Member
\nBoard of Revenue, Bihar and<\/a> another, (A.I.R. 1963 SC 786) it
\nwas held that in proceedings for a writ of certiorari it  is
\nnot only the Tribunal or Authority whose order is sought  to
\nbe  quashed  but also the parties in whose favour  the\tsaid
\norder is issued who are necessary parties and
\n     521<\/span>
\nthat it is in the discretion of the court to add or  implead
\nproper\tparties\t for completely settling all  the  questions
\nthat  may be involved in the controversy either suo motu  or
\non the application of a party to the writ or on\t application
\nfiled at the instance of such proper party.\n<\/p>\n
    In Murari Mohan Deo v. Secretary to Government of India,
\n[1985]\t3 SCC 120 the dismissal of a petition under  Article
\n226  of\t the Constitution by the Judicial  Commissioner\t was
\nchallenged  by the appellant therein. The  Judicial  Commis-
\nsioner\tfound that the appellant who was a forester  in\t the
\nemployment  of Tripura Government had been  wrongly  removed
\nfrom service by an order of compulsory retirement but never-
\ntheless refused to grant relief to the appellant because  he
\nhad  failed to implead the Government of India which  was  a
\nnecessary  party to the proceedings. This Court\t disapproved
\nthe  dismissal of the writ petition on the technical  ground
\nand observed as follows:-\n<\/p>\n
\t      “Respondent 1 is shown to be the Secretary  to
\n\t      the  Government  of India,  Ministry  of\tHome
\n\t      Affairs.\tIf there was technical error in\t the
\n\t      draftsmanship  of the petition by a lawyer,  a
\n\t      Forester\ta Class IV low grade servant  should
\n\t      not have been made to suffer. An oral  request
\n\t      to  correct  the\tdescription  of\t the   first
\n\t      respondent would have satisfied the procedural
\n\t      requirement.  By raising and accepting such  a
\n\t      contention,  after a lapse of six\t years,\t the
\n\t      law is brought into ridicule. The court  could
\n\t      have  conveniently  read the  cause  title  as
\n\t      Government of India which means Union of India
\n\t      through\tthe  Secretary,\t Ministry  of\tHome
\n\t      Affairs instead of the description set out  in
\n\t      the writ petition and this very petition would
\n\t      be  competent by any standard. The  contention
\n\t      is   all\tthe  more  objectionable   for\t the
\n\t      additional   reason   that   the\t  appointing
\n\t      authority of the appellant, the Chief  Commis-
\n\t      sioner  of the Government of Tripura  as\twell
\n\t      the  Chief  Forest  Officer  who\tpassed\t the
\n\t      impugned\t order\twere  impleaded\t  and\tthey
\n\t      represented  the\tadministration\tof   Tripura
\n\t      Government as well as the concerned  officers.
\n\t      Therefore,  not only the petition as drawn  up
\n\t      was competent but no bone of contention  could
\n\t      be taken about its incompetence.”<\/p><\/blockquote>\n
    Having  regard to this settled position of law the\tHigh
\nCourt  ought not to have sustained the objection  raised  by
\nthe  tenants  regarding the competency of the  appellant  to
\nfile  the suits and quashed the orders of  eviction  concur-
\nrently passed by the Small Cause Court and
\n522<\/span>
\nthe Appellate Judge and remitted the suits for fresh consid-
\neration with directions to consider the merits of the appli-
\ncation\tunder  Order 1 Rule 10 CPC but\tshould\thave  itself
\nallowed the petition and added the Registered Society repre-
\nsented\tby  its Secretary Dr. Om Prakash who is\t already  on
\nrecord,\t also as a party and disposed of the writ  petitions
\non their merits.\n<\/p>\n
    We, therefore, allow the appeal and remit the matter  to
\nthe  High  Court for disposal on merits after  allowing\t the
\napplication filed under Order 1 Rule 10 CPC by the appellant
\nand  ordering  Smt. Chandramukhi Ram  Saran  Shiksha  Samiti
\nthrough\t its Secretary Dr. Om Prakash to be also added as  a
\nplaintiff  in the suits so as to make it clear that  Dr.  Om
\nPrakash is representing not only the appellant’s school\t but
\nalso  the Registered Society and dispose of the\t writ  peti-
\ntions  on merits after the formal amendments have been\tcar-
\nried out in the pleadings. The parties are directed to\tbear
\ntheir respective costs.\n<\/p>\n
N.P.V.\t\t\t\t\t\t      Appeal\nallowed.\n523<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Bal Niketan Nursery School vs Kesari Prasad on 15 July, 1987 Equivalent citations: 1987 AIR 1970, 1987 SCR (3) 510 Author: S Natrajan Bench: Natrajan, S. (J) PETITIONER: BAL NIKETAN NURSERY SCHOOL Vs. RESPONDENT: KESARI PRASAD DATE OF JUDGMENT15\/07\/1987 BENCH: NATRAJAN, S. (J) BENCH: NATRAJAN, S. (J) MUKHARJI, SABYASACHI (J) CITATION: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-210389","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nBal Niketan Nursery School vs Kesari Prasad on 15 July, 1987 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/bal-niketan-nursery-school-vs-kesari-prasad-on-15-july-1987\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Bal Niketan Nursery School vs Kesari Prasad on 15 July, 1987 - 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