D. P. Wadhwa ( 1 ) THIS is plaintiff s appeal. His suit for possession ofshop premises bearing No. 534, Katra Ishwar Bhawan, Khan Baoli, Delhi, and alsoformesne profits was dismissed by the judgment and decree dated 30/01/1980of the Additional District Judge, Delhi. The suit was filed on 23/08/1993against defendant Bhagwat Pershad. Later his brother Rishikesh was also impleaded as second defendant. Both the defendants are real brothers of Kishangopal who was tenant of the shop premises as alleged by the plaintiff and washaving business there in the name of M/s. Ganpat Rai Kishan Gopal ( the firm forshort) as its sole proprietor. Kishan Gopal died some time in August 1968. Theplaintiff, who is the owner and landlord of the shop, contended that defendantbhagwat Pershad occupied the shop after the death of Kishan Gopal without anyauthority and his possession was, thus, unlawful and unathorised. The plaintiffalso claimed mesne profits, but for determining the mesne profits he prayed forappointment of Local Commissioner. The defendants contested the suit. There arevarious pleas in the alternative. They said the firm was a Joint Hindu Family firm,and for this firm the premises were taken on rent in the year 1946 by Kishan Gopaland his brother Rishikesh. They also said that proceedings were filed earlier by theplaintiff under the provisions of the Delhi Rent Control Act against the firm butthese were compromised and Kishan Gopal and Rishikesh were accepted astenants of the shop. An objection was raised that Rishikesh was a necessary party. As noted above, Rishikesh was ordered to be impleaded as a defendant as asubsequent stage. Defendants said that another petition for eviction filed undersection 14 (l) (b) of the Delhi Rent Control Act by the plaintiff was also dismissedand that the firm had been sued through its partners Rishikesh and Kishan Gopal. Then the defendants said that defendant Bhagwat Pershad was the youngerbrother of Kishan Gopal and Rishikesh and he had been sitting in the shop andconducting the business on behalf of his brothers for the last many years. It wasstated that the rent of the shop was being deposited by Bhagwat Pershad on behalfof his brothers and that the compromise in eviction proceedings was also signed bybhagwat Pershad on behalf of his brothers. It was, therefore, contended that theplaintiff could not call Bhagwat Pershad as unauthorised occupant. It wasstated that the rent of the shop was being deposited by Bhagwat Pershad on behalfof his brothers and that the compromise in eviction proceedings was also signed bybhagwat Pershad on behalf of his brothers. It was, therefore, contended that theplaintiff could not call Bhagwat Pershad as unauthorised occupant. Then it wasstated, though in the alternative, that tenancy of Kishan Gopal had not beenterminated during his life time and these tenancy rights after the death of Kishangopal devolved upon his legal heirs and those legal heirs, it was contended, werenecessary parties in the proceedings. An objection was, thus, raised that the suitwas not maintainable in law for want of non-joinder of necessary parties. ( 2 ) THE fact that Kishan Gopal had legal heirs had not been disputed by theplaintiff. These included his mother, his wife and children. It was the case of theplaintiff that since the tenancy of Kishan Gopal had been terminated during his lifetime, the tenancy rights did not devolve upon his heirs or anybody else, and furtherthat heirs of Kishan gopal were not in possession of the shop, and they were,therefore, neither necessary nor proper parties. On the pleadings of the parties, thefollowing issues were framed:- PRELIMINARY Issue:1. Whether the suit is barred under Section 50 of the Delhi Rent Controlact, 1958?issues:2. Whether the plaintiff is the owner of the shop in dispute ? 3. Whether the tenancy of M/s. Ganpat Rai Kishan Gopal has been dulyternninated ?4. Whether the defendants are tenants in the suit property as alleged ?5. To what amount on account of mesne profits, if any, is the plaintiffentitled ? ( 3 ) IN support of his case, the plaintiff led oral evidence. Since the ownershipof the plaintiff is not disputed, documents showing his ownership are not relevant. PW-1 Prem Chand Gupta, PW-2 S. R. Madan, and PW-3 Devinder Sharma talkabout the ownership of the shop by the plaintiff and it is not necessary to refer totheir statements. PW-4 Mr. S. L. Sethi was the Advocate of the plaintiff. He serveda notice of attornment (Ext. PW4/3) on behalf of the plaintiff on the firm. In crossexamination Mr. Sethi admitted that notice Ext. D-l was sent under the signatureof his son Mr. Ravinder Sethi, Advocate, to the firm on the instructions of theplaintiff. PW-5 is the plaintiff himself. He said he never accepted Bhagwat Pershadhis tenant. He serveda notice of attornment (Ext. PW4/3) on behalf of the plaintiff on the firm. In crossexamination Mr. Sethi admitted that notice Ext. D-l was sent under the signatureof his son Mr. Ravinder Sethi, Advocate, to the firm on the instructions of theplaintiff. PW-5 is the plaintiff himself. He said he never accepted Bhagwat Pershadhis tenant. He admitted that he had filed earlier a petition for eviction against thefirm where he mentioned this firm to be a partnership firm. This, he said, he did asdefendant Bhagwat Sarup had told him that it was a partnership firm, and thatplaintiff had no personal knowledge about the same. He said mentioning of thefirm as partnership was not intentional. Subsequently, plaintiff said he learnt thatkishan Gopal was the proprietor of the firm. He also said that he never saw Kishangopal or any of his heirs or even Rishikesh, defendant No. 2, in the shop but onlybhagwat Sarup, defendant, was found there. In the same breath the plaintiff saidthat after the death of Kishan Gopal, Bhagwat Pershad got into possession of theshop without the consent or permission of the plaintiff. In cross-examinationplaintiff admitted that he had been making purchases from and selling goods to thefirm through Kishan Gopal only, and that defendant Rishikesh used to write lettersand Hundis or keeping the accounts. Plaintiff said he was not aware if mother ofkishan Gopal was alive or that she lived with defendant Bhagwat Pershad. Muchof the cross-examination pertained to earlier eviction proceedings filed by theplaintiff against the firm. The plaintiff denied that defendant Bhagwat Sarup hadbeen sitting in the shop in dispute since very beginning and said he started sittingin the shop only after the death of Kishan Gopal in 1968. Plaintiff denied thesuggestion that defendant Bhagwat Sarup was sitting in the shop on behalf of theheirs of Kishan Gopal and also on behalf of Rishikesh. Plaintiff said he did concedein the Court of the Additional Rent Controller in eviction proceedings filed by himagainst Kishan Gopal that Kishan Gopal and Rishikesh were the partners, but hesaid it was a wrong statement made under some mistaken belief. ( 4 ) THAT is all the evidence of the plaintiff. The defendants in their evidence examined only the defendant Bhagwatpershad; brought on record certain documents and closed their evidence. Bhagwatpershad said Kishan Gopal died on Janmashtami day in August 1968 and wassurvived by his mother, wife and children. ( 4 ) THAT is all the evidence of the plaintiff. The defendants in their evidence examined only the defendant Bhagwatpershad; brought on record certain documents and closed their evidence. Bhagwatpershad said Kishan Gopal died on Janmashtami day in August 1968 and wassurvived by his mother, wife and children. He admitted that it was he who wassitting in the shop. He said he did not know if widow of Kishan Gopal and hischildren where in the knowledge of the present suit. He saidhowever, his motherwas in the know of the things. Defendant Bhagwat Sarup said his possession of theshop was on behalf of his brother Rishikesh and the legal representatives of hisdeceased brother Kishan Gopal, and that in contesting the suit he was onlyprotecting the interests of his brother Rishikesh and the legal representatives ofkishan Gopal. He said that after the deathof his brother Kishan Gopal also he, asbefore, used to sit in the shop on behalf of the legal representatives of Kishan Gopaland those heirs also used to come and sit in the shop occasionally after the death ofkishan Gopal. He named Kameshwar Nath and Kamleshwar Nath, both sons ofkishan Gopal, who used to come to the shop and sit there occasionally after thedeath of their father. Defendants admitted that both these sons had been in servicefor the last 8/10 years, the statement of witness having been recorded in January1980. Bhagwat Sarup denied the suggestion that after the death of Kishan Gopal, hisheirs had no concern with the shop. He denied that tenancy of Kishan Gopal wasterminated during his life time. Defendants also brought on record notice dated 28/08/1971 (Ext. D-l) sent to the firm under the signatures of Mr. Ravinder Sethi,advocate, under the instructions of the plaintiff. This notice, as noted above, hasbeen admitted by PW-4 Mr. Sohan Lal Sethi. This notice does not form part of thepaper book, and document Ext. D-l forming part of the paper book is not thecorrect document and this was a subject of comment by Mr. Vijay Kishan, Counselfor the defendants. Ravinder Sethi,advocate, under the instructions of the plaintiff. This notice, as noted above, hasbeen admitted by PW-4 Mr. Sohan Lal Sethi. This notice does not form part of thepaper book, and document Ext. D-l forming part of the paper book is not thecorrect document and this was a subject of comment by Mr. Vijay Kishan, Counselfor the defendants. In this notice addressed to the firm the plaintiff had stated thatthe firm was the tenant of the shop, but was now liable for eviction on the grounds (1) of non-payment of rent; (2) subletting, assigning and parting with possession ofthe shop to some other persons; and (3) misuser of the premises which had causeddamage and which misuser was stated to be deterimental to the interest of theplaintiff. This notice again purported to terminate the contractual tenancy of thefirm. It will at once be seen that this notice had been sent three years after the deathof Kishan Gopal. ( 5 ) THE learned Additional District Judge by the impugned judgment heldissues 2and 4in favour of the plaintiff and against the defendants. lssue No. 3 washeld in favour of the defendants holding that tenancy of the firm had not been dulyterminated. Issues 1 and 5 were discussed together and these were decided infavour of the defendants. Consequently, the suit was dismissed. It is issue No. 1which is the subject-matter of serious contest between the parties. The learned Trialcourt after holding issue No. 3 in favour of the defendants held that since thetenancy of Kishan Gopal had not been terminated in his life time and the contractual tenancy devolved upon his heirs and the contractual tenancy being heritable,the plaintiff was not entitled to bring the suit for possession or mesne profits, andthat the suit was, therefore, barred under Section 50 (1) of the Delhi Rent Controlact. Section 50 (1) of this Act bars the jurisdiction of the civil Court and is asunder:- "jurisdiction of civil Courts barred in respect of certain matters:-50 (1) Saveas otherwise expressly provided in this Act, no Civil Court shall entertain anysuit or proceeding in so far as it relates to the fixation of standard rent inrelation to any premises to which this Act applies or to eviction of any tenanttherefrom or to any other matter which the Controller is empowered by orunder this Act to decide, and no injunction in respect of any action taken orto be taken by the Controller under this Act shall be granted by any Civilcourt or other authority. "the Trial Court held that since the question of mesne profits was necessarilyinterlinked with the question of unlawful possession, the plaintiff was not entitledto mesne profits from the defendants. ( 6 ) THE plaintiff has challenged the impugned judgment. He said the Trialcourt erred in holding that earlier notice dated 3/04/1961 (Ext. PW4/3)terminating the tenancy of Kishan Gopal stood waived by a subsequent noticedated 28/08/1971 (Ext. D-l ). Plaintiff says in his grounds of challenge that thetrial Court made out a new case for the defendants not pleaded by them and thatthe case set up by the defendants was not taken into account. He says that thedefendants had pleaded that Kishan Gopal and Rishikesh were the joint tenantsand on the death of Kishan Gopal the tenancy rights had devolved on Rishikesh andin-any case on the legal heirs of Kishan Gopal, and again the defence was that it wasbhagwat Sarup who was sitting on the shop in question on behalf of his brotherskishan Gopal and Rishikesh and on the death of Kishan Gopal he was sitting on theshop now on behalf of Rishikesh and the legal heirs of Kishan Gopal. Plaintiff saysthat the, Trial Court also failed to take into consideration the case of Bhagwat Sarupthat he was only in occupation of the shop as a licensee on behalf of his two brothersand he never claimed to be the tenant of the shop. That being so, plaintiff says thesuit for possession should have been decreed against both the defendants, i. e. ,bhagwat Sarup and Rishikesh. The principal attack in the grounds by the plaintiffis on the notice Ext. D-l which, he says, could not be relied upon by the Trial Court. He says when notice Ext. That being so, plaintiff says thesuit for possession should have been decreed against both the defendants, i. e. ,bhagwat Sarup and Rishikesh. The principal attack in the grounds by the plaintiffis on the notice Ext. D-l which, he says, could not be relied upon by the Trial Court. He says when notice Ext. D-l was sent to the firm it was only by way of abundantcaution. When on the date when the notice was issued Kishan Gopal had alreadydied and as such this notice could not have waived the earlier notice (Ext. PW4/3)which had validly terminated the tenancy of Kishan Gopal, and that Kishan Gopalwas a statutory tenant at the time of his death. It was, therefore, pleaded that oncethe contractual tenancy has been terminated during the life time of Kishan Copal,notice Ext. D-l was of no effect. It was submitted that notice Ext. D-l was neverpleaded by the defendants in their written statement and. was merely put to awitness during cross-examination, and that it did not come from the lawful custodyand the plaintiff was not asked any question relating to this notice and even thedefendant Bhagwat Sarup in his statement did not REFERRED TO to this notice at all. Wethink this argument by the plaintiff on the admissibility of Ext. D-l is an act ofdesperation on his part. It cannot be disputed that notice Ext. D-l is a relevant pieceof evidence and supported the case of the defendants even on the first issue. ( 7 ) LET us see the sequence of events culminating in filing of the suit by theplaintiff which led to the passing of the impugned judgment. That the plaintiff is theowner and landlord is not disputed. He became owner sometime in 1958. On 3april, 1961 he sent notice (Ext. PW4/3) addressed to the firm M/s. Ganpat Raikishan Gopal. In the notice it was stated that the firm was a tenant and that the shopwas let out to it for the purpose of running Kiryana and dry furts business, and thatfor the last about 1- years the shop was being used as a godown and further thatit had been sublet to various persons for stocking their goods for short periods. Itwas, therefore, stated that since the conversion of the shop into a godown wasdetrimental to the interest of the plaintiff and the subletting was without theconsent of the plaintiff, the notice was liable to eviction. Itwas, therefore, stated that since the conversion of the shop into a godown wasdetrimental to the interest of the plaintiff and the subletting was without theconsent of the plaintiff, the notice was liable to eviction. The notice, i. e. , the firm,was called upon to pay up the arrears of rent and also to stop misuser of the shopas a godown. Otherwise , the firm was threatened with a petition for eviction. Thisnotice does not purport to terminate the tenancy of the firm. On 13/06/1961 theplaintiff filed a petition for eviction against the firm under the provisions of thedelhi Rent Control Act for eviction. The grounds of eviction were non-payment ofrent, misuser, and subletting. A copy of the petition is on record (Ext. PW4/1 ). Inthis the firm had been sued-through Kishan Gopal, its partner. The plaintiffadmitted the firm to be a partnership firm. This petition was contested by Kishangopal as a partner of the firm and the written statement is Ext. DW1/1. Plaintiffappeared as a witness in these proceedings for eviction and he said that Bhagwatsarup (who was present in Court at the time of recording of thestatement) used to. sit in the shop for sometime. This petition for eviction was compromised, and theorder of the Additional Rent Controller regarding compromise is dated 6/02/1964 (Ext. PW4/2 ). We may reproduce this order - "order:counsel for the respondent has stated that the respondent admits thepetitioner to be his landlord in respect of the premises in dispute andthat the amount being deposited in Court may be given too thepetitioner. Counsel for the petitioner has not pressed any other ground. Counsel for the parties have also stated that the reasonable standardrent of the premises should be Rs. 51. 00 per month and they haveprayed that the same be fixed with effect from 1. 2. 1964. I fix standardrent accordingly which in my view is the reasonable standard rent ofthe premises in dispute. The amount lying deposited in Court be givento the petitioner who is held to be landlord of the premises in disputeof the respondent. The petition is dismissed. File be consigned. Partiesshall bear their own costs. Announced: Sd/- Pritpal Singh6. 2. 1964. Additional Rent Controller,delhi. "this order itself will also show that notice Ext. The amount lying deposited in Court be givento the petitioner who is held to be landlord of the premises in disputeof the respondent. The petition is dismissed. File be consigned. Partiesshall bear their own costs. Announced: Sd/- Pritpal Singh6. 2. 1964. Additional Rent Controller,delhi. "this order itself will also show that notice Ext. PW4/3 outlived its utility evenif it is assumed that it purported to terminate the tenancy of Kishan Gopal when itwas addressed to the firm which the plaintiff admitted to be a partnership firm andkishan Gopal, a partner thereof. ( 8 ) ON 15/01/1965 yet another eviction petition was filed by the plaintiffunder the provisions of the Delhi Rent Control Act (Ext. DWI/2 ). In this theplaintiff sued the firm through Kishan Gopal and Rishikesh as partners of the firm. The address of both Kishan Gopal and Rishikesh was that of the shop in dispute. Again the grounds of eviction were unauthorised subletting and non-payment ofrent. It was admitted at the Bar that this petition was dismissed in default thoughafter the respondent firm had put in its appearance. The plaintif, however, does notgive any reason why he got this petition dismissed. ( 9 ) THEN comes the notice dated 28/08/1971 (Ext. D-1) which has beenreferred TO to above. Again this notice was sent to the firm at the address of the firmat the shop in question and not to Kishan Gopal. It is not that the plaintiff wasstranger either to Kishan Gopal, Rishikesh or Bhagwat Sarup. We have notedabove, he was having business dealings with the firm and it is not believable thatin 1971 he was not aware that Kishan Gopal had died. Notice was addressed to thefirm as plaintiff had all through admitted this firm to be a partnership firm. Thenthe present suit was filed on 30/08/1973. ( 10 ) V. It appears, there is no stopping the plaintiff in his crusade against thedefendants to have the shop premises vacated. In a span of less than 10 years hefiled three proceedings for eviction, or possession, against the firm. Consideringthe conduct of the plaintiff it is difficult to believe his statement that earlier hethought that the firm was a partnership firm under some misapprehension. As tohow he had such a mistaken belief he had no plausible explanation to offer. In a span of less than 10 years hefiled three proceedings for eviction, or possession, against the firm. Consideringthe conduct of the plaintiff it is difficult to believe his statement that earlier hethought that the firm was a partnership firm under some misapprehension. As tohow he had such a mistaken belief he had no plausible explanation to offer. Itappears to us that once having come to know that Kishan Gopal had died, and ona wrong legal advice, he embarked upon the present litigation. It remainedundisputed that Kishan Gopal is survived by his mother, wife and children and hisbrother Rishikesh is also alive. That being so, the legal heirs of Kishan Gopal wouldbecome tenants of the shop claiming their rights through Kishan Gopal. Law on thisquestion is well settled by the Supreme Court in Smt. . Gian Devui Anand v. Jeevan Kumar and Others, AIR 1985 S. C. 796. Mr. Gupta, learned Counsel for the plaintiff,however, vehemently argued that as far as Bhagwat Sarup was concerned, he hadno right to possession of the shop and that no legal heirs of Kishan Gopal had comefor ward to claim their rights in the shop, and that if they had any right in the shop,they would be entitled to file objections to the decree if passed against Bhagwatsarup during the course of execution proceedings, or they would even be entitledto file a suit challenging the decree. In support of his submission Mr. Gupta REFERRED TOto two Bench decisions of this Court in Mahavir Prasad v. Sukhdev Mongia andanother, 1990 (2) R. C. J. 254, and Prem Pal Singh v. Jugal Kishore Gupta, 50 (1993)D. L. T. 49. We do not think any of these two decisions is of any application to thepresent case. The argument of Mr. Gupta proceeded like this. The Court assumesjurisdiction on the basis of allegations made in the plaint and that the Court cannotlook beyond that. We do not agree. It is true that initially the Court assumesjurisdiction on the basis of allegations made in the plaint, but then when the writtenstatement is filed and objection raised about the jurisdiction and issue framed andevidence led, the Court has nevertheless to decide that issue. We do not agree. It is true that initially the Court assumesjurisdiction on the basis of allegations made in the plaint, but then when the writtenstatement is filed and objection raised about the jurisdiction and issue framed andevidence led, the Court has nevertheless to decide that issue. In both the decisionsreferred TO to above the plaintiff-landlord had alleged that the defendants were licensees or in unauthorised occupation of the premises and the Court held onevidence that that being so, it would certainly have jurisdiction in the matter. Thatis not the case here. Bhagwat Sarup had clearly proved his case that he was inpossession of the shop on behalf of legal heirs of deceased brother Kishan Gopaland Rishikesh, and that Rishikesh and legal heirs of Kishan Gopal continued to bethe tenants of the shop premises. Court cannot close its eyes to such facts and yetproceed to pass a decree against Bhagwat Sarup embroiling everyone in futurelitigation. We do not agree with the findings of the learned Trial Court thatpossession of Bhagwat Sarup and/or Rishikesh was unauthorised. Notice Ext. D-1 showed that the case set up by the plaintiff was not true. In order to defend thesuit the defendants had only to prove that they were the tenants, or that they werein lawful possession of the shop premises. This they did. Civil Court, therefore, hadno jurisdictionand the suit was barred under Section 50 of the Delhi Rent Controlact. ( 11 ) MR. Gupta contended that since none of the legal heirs of Kishan Gopalcame to defend the suit it was a case of implied surrender or abandonment of the. tenancy existing in favour of Kishan Gopal. This was not the case pleaded by theplaintiff, no issue raised and no evidence led, and we will not, therefore, take noticeof such a submission. However, reliance was placed by Mr. Gupta on the decisionof a Single Bench of this Court in Sushil Kumar v. Bhagwanti Devi and Another,1989 (2) R. C. J. 629. That was an appeal arising out of certain proceedings foreviction under the Delhi Rent Control Act. The landlord had earlier filed a petitionfor eviction against the tenant on the ground of non-payment of rent. An order todeposit rent was made which the tenant complied and eviction petition was,therefore, dismissed. Again the tenant defaulted and a second eviction petition wasfiled. That was an appeal arising out of certain proceedings foreviction under the Delhi Rent Control Act. The landlord had earlier filed a petitionfor eviction against the tenant on the ground of non-payment of rent. An order todeposit rent was made which the tenant complied and eviction petition was,therefore, dismissed. Again the tenant defaulted and a second eviction petition wasfiled. In this the tenant took up the plea that his father was the tenant earlier and onhis death all his legal heirs became co-tenants by inheritance. The landlord,however, pleaded that after the death of the father of the tenant, the tenant attornedto the landlord and he alone had been paying rent all these years and no such pleawas taken in the earlier eviction petition, and, therefore, the plea of co-tenancycould not be raised and was barred by principles of res-judicata. The tenant failed,his eviction was ordered, and ultimately he came to this Court in second appeal. Inthe meanwhile, other heirs of the tenant father filed objections under Section 25 ofthe Delhi Rent Control Act claiming independent right/title in the premises. Herethe heirs succeeded in the Court of the Additional Rent Controller, but that orderwas set aside by the Rent Control Tribunal on an appeal filed by the landlord. Against that order the heirs again came in appeal to this Court and both the appealswere. decided together by the learned Single Judge. The learned Single Judgeobserved that it was no doubt true that the heirs of the deceased tenant would stepinto the position of the deceased tenant and all the rights and obligations of thedeceased tenant including the protection afforded to the deceased tenant under thedelhi Rent Control Act would devolve on his legal heirs. He, however, noted thathad the plea of implied surrender of tenancy rights not been taken and found infavour of the landlords by the Court below, certainly, will the heirs would havebecome the co-tenants of the premises and would-have been entitled to the. protection of the Act. In the present case before us there was no plea of impliedsurrender or abandonment of the tenancy rights by the legal heirs of Kishan Gopal. Judgment of this Court. in Sushil Kumar s case does not support the case of theplaintiff. protection of the Act. In the present case before us there was no plea of impliedsurrender or abandonment of the tenancy rights by the legal heirs of Kishan Gopal. Judgment of this Court. in Sushil Kumar s case does not support the case of theplaintiff. ( 12 ) IT was then submitted that once the Trial Court held that defendants werein unauthorised occupation of the shop, a decree ought to have been passedirrespective of the fact that they were legal heirs of Kishan Gopal or that the legalheirs were necessary parties to the suit. For one, we do not think that issue No. 4 wasrightly decided in favour of the plaintiff. It does appear to us that Trial Court didnot properly appreciate the documentary evidence of earlier eviction proceedingson record and the prevaricating stand of the plaintiff. The statement of the plaintiffdoes not inspire confidence. In view of the preliminary issue which is comprehensive and in view of the evidence on record that Kishan Gopal was survived by hislegal heirs and that the defendants, even if Rishikesh was not a tenant, were in anycase in lawful possession of the shop, no decree for eviction could have been passedby a Civil Court. Mr. Gupta REFERRED TO to a decision of the Supreme Court inrameshwar and Others v. Jot Ramand Others, AIR 1976 S. C. 49, to submit that theright to relief must be judged to exist as on the date the plaintiff institutes the legalproceedings. We are unable to appreciate this argument. Such a question is notarising in the present case. Then it was submitted, in answer to an argument by thedefendants that legal heirs of deceased Kishan Gopal were necessary parties tothese proceedings, that under Order I Rule 9 of the Code, before its amendment bythe Amending Act of 1976, suit could not be defeated. Order I Rule 9 is as under,the proviso having been added by the Amending Act of 1976 w. e. f. I February,1977 :- "misjoinder and non-joinder. 9. No suit shall be defeated by reason of the misjoinder or non-joinder ofparties, and the Court may in every suit deal with the matter in controversyso far as regards the rights and interests of the parties actually before it:provided that nothing in this rule shall apply to non-joinder of a necessaryparty. 9. No suit shall be defeated by reason of the misjoinder or non-joinder ofparties, and the Court may in every suit deal with the matter in controversyso far as regards the rights and interests of the parties actually before it:provided that nothing in this rule shall apply to non-joinder of a necessaryparty. "we think the proviso only made explicit what was already implicit that in casethe necessary parties are not before the Court it cannot decide the suit at all in theirabsence. This will appear to us to be the ratio of the decision of the Supreme Courtin Profulla Chorone Requitte and Others v. Satya Choron Requitte, AIR 1979 S. C. 1682. But then to an extent Mr. Gupta is right. It is not the case of the plaintiff thatthe defendants and legal heirs of Kishan Gopal were joint tenants, and that all thejoint tenants had to be impleaded in the suit. Mr. Gupta also REFERRED TO to two Benchdecisions of the Patna and Bombay High Courts in Mahabir Mistry and Others v. Sm. Lachhmini Devi and Others, AIR 1975 Patna 279, and Vyankatesh Dhonddevdeshpande v. Sou, Kusum Dattatraya Kulkarni and Others, AIR 1976 Bombay 190. Mr. Gupta said that since on the finding of the Trial Court that defendants were inunauthorised occupation of the shop complete and effective relief could be grantedto the plaintiff, it was not necessary to implead the legal heirs of Kishan Gopal inthe suit and that they were not, and could not be, necessary parties and the suitcould not fail in their absence. As we have noted above, the argument of Mr. Guptaproceeded thus that the legal heirs of Kishan Gopal could be well within their rightsto file objections in the execution proceedings and also file a separate suit challenging the decree in the present case. That may appear to be the result, but once thecourt finds that the case of the plaintiff itself is based on the fact that Kishan Gopalwas a tenant, and that he survived by his legal heirs, it is difficult to see how thecourt, both in law and equity, will grant a decree to the plaintiff, and involve theparties in multiplicity of litigation. Procedure is meant to advance justice and notto thwart it. In any case, we have already held that possession of Bhagwat Pershadand Rishikesh could not be termed as unauthorised. Procedure is meant to advance justice and notto thwart it. In any case, we have already held that possession of Bhagwat Pershadand Rishikesh could not be termed as unauthorised. That being the position, theplaintiff cannot take advantage of the provision of Order I Rule 9 of the Code. In this view of the matter, the plaintiff fails and the appeal is dismissed withcosts.