JUDGMENT Hon’ble Dilip Gupta, J.—Defendant Nos. 2 and 3 of SCC Suit No. 18 of 1985 that had been filed by Radhika Prasad (since deceased) for ejectment of the defendants and for recovery of arrears of rent for the reason that defendant No. 1 had sub-let the premises to defendant Nos. 2 and 3, have filed this petition with the following reliefs : “(a) Issue a writ, order or direction in the nature of mandamus declaring execution case No. 4 of 2010, Vijai Kumar v. Raj Bali and others, pending in the Court of Civil Judge (J.D.) Mirzapur, as legally incompetent, an abuse of the process of the law and Court, void and unenforceable as the same is arising out of the judgments and decrees of the Court below passed in SCC Suit No. 18 of 1985, Radhika Prasad Agarwal v. Ram Prasad Tiwari and others, which had already abated on account of non-substitution of the heirs and legal representatives of the deceased tenant Kamla Devi. (b) Issue a writ, order or direction in the nature of mandamus declaring that the Civil Judge (J.D.) and Additional District Judge IV had lacked in inherent jurisdictions in passing the judgments and decrees dated 8.2.2008 (Annexure 4) and 23.9.2009 (Annexure 5) respectively in suit No. 18 of 1985 followed by SCC Revision No. 33 of 2008 in that suit No. 18 of 1985, had already abated in law for want of substitution of legal heirs and representatives of the deceased tenant Ram Prasad Tiwari/Kamla Devi. (c) Issue a writ, order or direction in the nature of mandamus declaring that the Court of Judge Small Causes has jurisdiction to evict a tenant, from the demised building on one or more of the grounds as contemplated in Section 20(2) of U.P. Act No. 13 of 1972 whose tenancy has been determined by the landlord as per Section 20(1) of the said Act read with Section 106 of T.P. Act, but it has no jurisdiction to pass a decree of eviction against a person who is not the tenant including the petitioners who are admittedly not the tenants. (d) Issue a writ, order or direction in the nature of mandamus declaring that the judgment and decree dated 8.2.2008 passed by Civil Judge (J.D.) Mirzapur (Annexure 4) and that of Additional District IV, Mirzapur dt. (d) Issue a writ, order or direction in the nature of mandamus declaring that the judgment and decree dated 8.2.2008 passed by Civil Judge (J.D.) Mirzapur (Annexure 4) and that of Additional District IV, Mirzapur dt. 23.9.2009 (Annexure 5) as void, total nullity, legally unenforceable for having been passed beyond the ambit of Section 20(1)(2) of U.P. Act No. 13 of 1972 and also for having passed in the suit which had already abated in law.” 2. The aforesaid SCC Suit No. 18 of 1985 was decreed by the Judge, Court of Small Causes on 8th February, 2008 against which the petitioners filed a Revision under Section 25 of the Provincial Small Cause Courts Act, 1887 (hereinafter referred to as the ‘1887 Act’) which Revision was dismissed by the judgment and order dated 23rd September, 2009. The decree holder put the decree into the execution and the case was registered as Execution Case No. 4 of 2010. Defendant Nos. 2 and 3, who were found to be sub-tenants of defendant No. 1 to whom the premises was given on rent by the plaintiff, have filed this petition with the allegation that the suit stood abated as the widow of the tenant-defendant No. 1, who was substituted as the heir and legal representative of the tenant on his death, also died during the pendency of the suit and her heirs and legal representatives were not brought on record and consequently the execution proceedings cannot proceed. 3. It transpires that Radhika Prasad Agarwal (since deceased) had filed SCC Suit No. 18 of 1985 against Ram Prasad Tiwari (defendant No. 1), Raj Bali Singh (defendant No. 2/petitioner No. 1 who has been substituted by his legal heirs and representatives) and Yaduraj Singh (defendant No. 3/petitioner No. 2) for ejectment and recovery of arrears of rent with the allegation that the house had been given on rent to defendant No. 1-Raj Bali Singh but rent with effect from 1st January, 1978 to 31st August, 1984 had not been paid; that defendant No. 1 permitted defendant Nos. 2 and 3 to occupy the house even though they were not members of the family and that the notice dated 8th April, 1985 was sent to defendants for termination of the tenancy and for arrears of rent but despite termination of the tenancy, the defendants did not vacate the house and nor did they pay the arrears of rent. 4. A written statement was filed on behalf of defendant No. 1 in which he admitted that he had initially allowed defendant Nos. 2 and 3 to occupy the accommodation let out to him by the plaintiff and subsequently sub-let it to them on monthly rent of Rs. 40/- and Rs. 30/- respectively. A written statement was also filed on behalf of defendant Nos. 2 and 3. It was stated by them that the plaintiff was not the owner of the house; that defendant Nos. 1 was not the tenant and they were never allowed by defendant No. 1 to occupy the accommodation and that defendant Nos. 2 and 3 were residing in the house as owners. 5. During the pendency of the suit, Ram Prasad Tiwari (defendant No. 1) died and his widow Kamla Devi was substituted as his legal heir and representative but Kamla Devi also died during the pendency of the suit and substitution application was not filed to bring on record her legal heirs and representatives. The suit was decreed on 4th May, 2005 but defendant Nos. 2 and 3 filed a Revision which was allowed and the matter was remanded to the Court of Small Causes. On remand, the Court of Small Causes again decreed the suit on 8th February, 2008 holding that defendant No. 1 had sub-let the premises to defendant Nos. 2 and 3. SCC Revision No. 33 of 2008 was filed by defendant Nos. 2 and 3 (petitioners) for setting aside the decree but the Revision was dismissed by the judgment and order dated 23rd September, 2009. 6. 2 and 3. SCC Revision No. 33 of 2008 was filed by defendant Nos. 2 and 3 (petitioners) for setting aside the decree but the Revision was dismissed by the judgment and order dated 23rd September, 2009. 6. This petition does not seek the quashing of the judgment and decree of the Court of Small Causes or the Revisional Court and the relief, as noticed hereinabove, is for declaring that the judgment and decree dated 8th February, 2008 passed by the Judge, Court of Small Causes and the judgment and decree dated 23rd September, 2009 passed by the Revisional Court are null and void and legally unenforceable as they have been passed in a suit which had abated. For the same reason, further relief that has been claimed is for declaring Execution Case No. 4 of 2010 legally incompetent, an abuse of the process of the Court, unenforceable and void. 7. Learned counsel for the petitioner has submitted that under Section 20(2) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the ‘1972 Act’), a suit for eviction of a tenant alone from a building after determination of his tenancy can be instituted and as the petitioners (defendant Nos. 2 and 3) are sub-tenants and not tenants, the suit abated since the legal heirs and representatives of the widow of the deceased tenant-defendant No. 1 were not brought on record after the death of the widow, who had earlier been substituted in place of the tenant. It is also his submission that the Judge, Court of Small Causes has the jurisdiction to pass a decree only against a tenant and not against a person who is not a tenant and since in the instant case no decree against the tenant could have been passed as the suit against him abated, the petitioners who are sub-tenants cannot be evicted. It is also his submission that defendant No. 1 had colluded with the plaintiff and had made a false statement that he had sub-let the accommodation to defendant Nos. 2 and 3 though defendant Nos. 2 and 3 were the owners of the premises by adverse possession. 8. It is also his submission that defendant No. 1 had colluded with the plaintiff and had made a false statement that he had sub-let the accommodation to defendant Nos. 2 and 3 though defendant Nos. 2 and 3 were the owners of the premises by adverse possession. 8. The first submission of learned counsel for the petitioners is that the suit filed by the plaintiff for ejectment and for payment of arrears of rent stood abated when Kamla Devi, widow of the deceased defendant No. 1, died for the reason that her heirs and legal representatives were not brought on record. It is, therefore, his submission that the decree passed by the Judge, Court of Small Causes on 8th February, 2008 is null and void and legally unenforceable. In support of this contention, learned counsel for the petitioners has placed reliance upon the provisions of Section 20(2) of the 1972 Act and has contended that the suit for eviction of a tenant from a building after the determination of his tenancy can be instituted and so if the legal heirs and representatives of the tenant are not brought on record, the suit will abate even though the sub-tenants may have been arrayed as defendant Nos. 2 and 3. This contention of the learned counsel for the petitioners cannot be accepted. Sub-section (1) of Section 20 of the 1972 Act provides that save as provided in sub-section (2), no suit shall be instituted for eviction of the tenant from a building, notwithstanding the determination of his tenancy by efflux of time or expiration of the notice to quit or in any other manner. Sub-section (2) of Section 20 of the 1972 Act provides that a suit for eviction of the tenant from a building after determination of his tenancy may be instituted on one or more of the grounds stipulated in sub-clauses (a) to (g). Under sub-clause (e), a suit against a tenant can be instituted if the tenant has sub-let the premises, in contravention of the provisions of Section 25 of the 1887 Act, the whole or any part of the building. In the instant case, the plaintiff had instituted the suit on the ground that the tenant was in arrears of rent for not less than four months and the tenant had also sub-let the premises to defendant Nos. 2 and 3. In the instant case, the plaintiff had instituted the suit on the ground that the tenant was in arrears of rent for not less than four months and the tenant had also sub-let the premises to defendant Nos. 2 and 3. The Courts below have found as a fact that the tenant-defendant No. 1 had sub-let the premises to defendant Nos. 2 and 3 who were in actual possession and, accordingly, the suit for ejectment was decreed. 9. This plea which has been sought to be raised by the petitioners was not raised before the Judge, Court of Small Causes or the Revisional Court and has been raised for the first time in this petition. Even if the contention of learned counsel for the petitioners that plea about nullity of a decree can be raised at any time is accepted, then too the contention of learned counsel for the petitioners cannot be accepted. It is seen that defendant Nos. 2 and 3 have not denied that they were not living in the building. Though definition of “tenant” in the 1972 Act does include a sub-tenant but as the term “tenant” and “landlord” have been defined with reference to liability of payment of rent, a “tenant” would also include a “sub-tenant” because rent would be payable by him to the chief tenant as has been held in Rajendra Nath Tewari v. 3rd Additional District Judge, Allahabad, 1981 ARC 271 and Bullan Singh v. Ram Babu, 1965 ALJ 544. 10. The plaintiff can certainly seek the ejectment of the sub-tenants if the tenant has sub-let the premises to sub-tenants in contravention of the provisions of Section 25 of the 1887 Act and the sub-tenants are in possession of the premises. Under Order 22 Rule 1 of the Code of Civil Procedure, the death of a defendant shall not cause the suit to abate if the right to sue survives and in the instant case the right to sue against the sub-tenants survives. Under Order 22 Rule 2 of the Code of Civil Procedure, it is provided that where there are more than one defendants and any one of them dies and where the right to sue survives against the surviving defendant, the suit shall proceed at the instance of the surviving defendant. Under Order 22 Rule 2 of the Code of Civil Procedure, it is provided that where there are more than one defendants and any one of them dies and where the right to sue survives against the surviving defendant, the suit shall proceed at the instance of the surviving defendant. In the present case, there were three defendants and even if heirs of defendant No. 1 have not been brought on record, the suit can proceed against the sub-tenants who are in actual occupation of the premises. 11. A similar controversy arose in J. Abdul Salman v. Argulmigu Koniamman Devasthanam and others, 2003 (3) CTC 536 . In a suit for ejectment and recovery of arrears of rent for the reason that the tenant had sub-let the property, it was held that if the sub-tenants are found to be in possession of the property, then non impleadment of the heirs and legal representatives of the tenant is not fatal and a decree can be passed against the sub-tenants. It was observed : “In the substantial question of law 1 and 2, the appellant has wrongly mentioned ‘deceased second defendant’ instead of deceased second respondent. Now, I proceed to consider the said two questions of law. The suit is for recovery of possession, arrears of rent and damages. Except the deceased first defendant, the other defendants found to be in possession. When the plaintiff has established that he is entitled to recover possession from the defendants 2 to 5, who are in wrongful occupation, the Court can pass a decree against the defendants 2 to 5, who are really in occupation even in the absence of the first defendant’s legal representatives since they are admittedly not in occupation. The appellant has not canvassed either before me or before the Courts below that by fraud or collusion between the plaintiff and first defendant’s legal representatives the suit has been prosecuted or trial has been conducted. Legal representatives brought on record under Order 22 will have the same right as that of the deceased in whose place he or she come on record. Under Order 22 Rule 2 CPC where the defendants are jointly and severally liable to the plaintiff and one of them died, his legal representatives need not be brought on record. Legal representatives brought on record under Order 22 will have the same right as that of the deceased in whose place he or she come on record. Under Order 22 Rule 2 CPC where the defendants are jointly and severally liable to the plaintiff and one of them died, his legal representatives need not be brought on record. Particularly, in this case, the first defendant himself admitted in the written statement that possession of the suit property was only with the defendants 2 to 5. It is also the case of the appellant and the defendants 3 to 5 that they are in continuous possession of the suit property nevertheless the attornment of tenancy in favour of the deceased first defendant as such the Decree can be passed against the appellant and the defendants 3 to 5. Hence, I am of the view that non-impleadment of legal heirs of the deceased first defendant is not fatal to the case and I answer the first two substantial questions of law against the appellant herein.” 12. In this connection, the decision of the Supreme Court in Balvant N. Viswamitra and others v. Yadav Sadashiv Mule (dead) through Lrs. and others, (2004) 8 SCC 706 , also needs to be noticed in which the decision of the Bombay High Court in Special Civil Application No. 1360 of 1973 was noticed and the relevant paragraphs are as follows : “21. The learned counsel for the appellants, in this connection, rightly invited our attention to a decision of the High Court of Bombay in Special Civil Application No. 1360 of 1973 decided on 15.11.1977/16.11.1997. In that case, property was let by the landlord to one Narayan. Narayan died and thereafter the landlord terminated the tenancy by issuing notice to “the heirs and legal representatives” of deceased Narayan. A suit was thereafter filed against heirs and legal representatives of deceased Narayan on the grounds of arrears of rent and unlawful sub-letting of suit premises. The person in possession of the property (sub-tenant) made an application to be joined as party defendant which was granted. The suit was not contested by the heirs and legal representatives of deceased Narayan and it was contested by the sub-tenant and the decree was passed by the Trial Court and confirmed by the appellate Court. 22. The sub-tenant approached the High Court. The suit was not contested by the heirs and legal representatives of deceased Narayan and it was contested by the sub-tenant and the decree was passed by the Trial Court and confirmed by the appellate Court. 22. The sub-tenant approached the High Court. It was contended that the notice addressed to “the heirs and legal representatives” of deceased Narayan could not be said to be in accordance with law and tenancy was thus not validly terminated. No suit, hence, could have been filed and no decree could have been passed. 23. Negativing the contention, the Court held that the persons who could make grievance were the heirs and legal representatives of deceased Narayan and the petitioner had no right to make such grievance. The Court further observed that since the petitioner was claiming through the tenant, he was bound by the decree passed in the suit. The petition was, therefore, dismissed.” (emphasis supplied) 13. This apart, what further needs to be noticed is that the Constitution Bench of the Supreme Court in S. Amarjit Singh Kalra v. Pramod Gupta, AIR 2003 SC 2588 , observed as follows : “Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights to citizen under personal, property and other laws. Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice. A careful reading of the provisions contained in Order 22 of CPC as well as the subsequent amendments thereto would lend credit and support to the view that they were devised to ensure their continuation and culmination into an effective adjudication and not to retard the further progress of the proceedings and thereby non-suit the others similarly placed as long as their distinct and independent rights to property or any claim remain in tact and not lost forever due to the death of one or the other in the proceedings. The provisions contained in Order 22 are not to be construed as a rigid matter of principle but must ever be viewed as a flexible tool of convenience in the administration of justice.................” Thus, though the widow of defendant No. 1 may not have been substituted, yet as defendant Nos. The provisions contained in Order 22 are not to be construed as a rigid matter of principle but must ever be viewed as a flexible tool of convenience in the administration of justice.................” Thus, though the widow of defendant No. 1 may not have been substituted, yet as defendant Nos. 2 and 3 were in possession of the building and both the Courts below have held that they are occupying the building as sub-tenants, the submission of learned counsel for the petitioners that the suit will abate if the heirs and legal representatives of defendant No. 1-tenant are not brought on record cannot be accepted. What also needs to be noticed is that the heirs and legal representatives of defendant No. 1 have not made any complaint. 14. The second submission of the learned counsel for the petitioners is that a suit instituted under Section 20(2) of the 1972 Act can be decreed only against a tenant and sub-tenants can be evicted pursuant to such a decree, but since the tenant had died and was not substituted, no decree could have been passed against the tenant and, accordingly, the petitioners cannot be evicted. This submission of the learned counsel for the petitioners cannot also be accepted. In the instant case, this submission was not raised before the Courts below but even otherwise, in view of the decisions referred to above, the decree against defendant Nos. 2 and 3 could be passed even if defendant No. 1 had died and was not substituted. 15. The third contention of learned counsel for the petitioners is that defendant No. 1 had colluded with the plaintiff and had, therefore, made a statement that he had sub-let the premises to defendant Nos. 2 and 3 because otherwise, no tenant will make such a statement. It is not the case of defendant Nos. 2 and 3 that they were the tenants because what they contend is that they are owners of the property and in this connection they have stated that they have become owner by adverse possession. The pleadings are absolutely vague and the essential ingredients for claiming adverse possession have not been stated. This submission of the learned counsel for the petitioners cannot also be accepted. There is, therefore, no merit in this petition. It is, accordingly, dismissed. ——————