JUDGMENT : Vivek Singh Thakur, J. Parties in present appeal, for convenience, shall be referred according to their status in the Civil Suit. As such, appellant shall be referred as defendant No.2, respondent No.1 shall be referred as plaintiff and respondent No.2 shall be referred as defendant No.1. 2. Present appeal has been preferred against the judgment and decree dated 28.8.2021, passed by Additional District Judge (I), Shimla, in Civil Appeal No.37-S/13 of 2018, titled as Sapna Puri v. Vijay Sood & another, whereby judgment and decree dated 7.7.2018, passed by Civil Judge, Court No.4, Shimla, in Civil Suit RBT No.72-I of 2015/10, titled as Sapna Puri versus Vijay Sood and another, has been modified and instead of passing a decree for possession against defendant No.1, decree of possession has been passed against both defendants, and plaintiff has also been held entitled for use and occupation charges at the rate of Rs.3,000/- per month with effect from 29.7.2020 till the suit property is vacated and possession is handed over to the plaintiff, making both defendants liable jointly and severally. 3. Appeal was admitted on the following substantial questions of law: 1. Whether the judgment and decree passed by the Ld. Court below is both against law and facts of the case and as such liable to be quashed and set- aside? 2. Whether the Ld. Court below while modifying the judgment and decree of the Ld. Trial Court has misconstrued and misapplied the provisions of the Civil Procedure Code especially Order 7 Rule 5 CPC, Specific Relief Act, and failed to appreciate the material placed on record in the proper perspective while recording its findings, resulting in the wrongful decreeing of the suit against the appellant/ defendant? 3. Whether the Ld. First Appellate Court while decreeing the suit against the present appellant/defendant acted contrary to the mandate of the Hon'ble Supreme Court and provisions of Order 7 Rule 5 CPC, by granting relief against the present appellant/ defendant, notwithstanding the fact that no such relief had been sought in the plaint? 4. Whether a Civil Court while exercising powers under the provisions of the Civil Procedure Code and Specific Relief Act is authorised to grant relief beyond the relief sought by the party before it? 5. Whether the Ld. 4. Whether a Civil Court while exercising powers under the provisions of the Civil Procedure Code and Specific Relief Act is authorised to grant relief beyond the relief sought by the party before it? 5. Whether the Ld. First Appellate Court has mis- directed itself by allowing use and occupation charges in favour of the respondent/plaintiff when only damages had been sought in the suit and no supporting evidence to justify the awarding of damages had been adduced by the respondent/ plaintiff? 6. Whether the Ld. Court below has misread and misconstrued the entire pleadings, evidences oral as well as documentary, resulting in the wrongful findings against the present appellant? 4. On 6.10.2010, plaintiff filed a suit against defendant No.1 Vijay Sood, seeking the following relief: “a) A decree for possession of flat consisting Three Rooms one kitchen, one Toilet having covered area of 45.79 Sq.Mtrs situated at Up Mohal Keleston, Tehsil Shimla (U), District Shimla built upon land in Khasra no.1087 on the first floor of building known as "Mohan Niwas" on 24-6-2010 purchased vide Sale Deed no. 338/2010 from Sh.Chander Mohan son of Late Sh.Madan Mohan Sharma be passed in favour of plaintiff directing the defendant to handover the vacant and peaceful possession. b) A decree for damages be passed against the defendant directing him to pay sum of Rs 10,000/- P.M w.e.f 29-7-2010 till delivering the possession of three room flat on account of use and occupation charges. Defendant be further directed to pay cost of suit, lawyers fee and notice fees. c). A decree be passed in favour of plaintiff and against the defendant for recovery of sum of Rs 100000/- on account of readymade garments which was taken by defendant illegally in his possession. Any other suitable decree in addition or in the alternative, deem fit and proper be also passed in favour of the plaintiff and against the defendant.” 5. Before the Trial Court, defendant No.1 Vijay Sood could not be served through ordinary process and, ultimately, vide order dated 16.5.2011, he was ordered to be served through publication in Newspaper. Accordingly, he was served through publication for 30.8.2011, but for non-appearance by him or on his behalf, he was proceeded ex-parte and matter was listed for ex-parte evidence on 23.11.2011. 6. Accordingly, he was served through publication for 30.8.2011, but for non-appearance by him or on his behalf, he was proceeded ex-parte and matter was listed for ex-parte evidence on 23.11.2011. 6. On 23.11.2011, defendant No.2 Vandna Sood, who is wife of defendant No.1, filed an application under Order 1 Rule 10 of the Code of Civil Procedure (for short ‘CPC’) for impleadment as a party, claiming that she was entitled to stay in the suit premises with her husband defendant No.1 Vijay Sood; her husband had deserted her since last one year, whose whereabouts were not known and the house was in her (defendant No.2) occupation, where she was residing with her daughter; as the house in reference was her matrimonial house, she was entitled to stay in the premises being legally wedded wife of defendant No.1, and because defendant No.1 had failed to contest the proceedings and, as such, she had right to contest the suit which could not have been decided in her absence. It was further claimed that right of deserted wife to stay in the tenanted premises, where she was residing with her husband before desertion, confers right to contest the eviction proceedings in view of law laid down in B.P. Achala Anand v. S. Appi Reddy and another, (2005) 3 SCC 313 . 7. Vide order dated 2.8.2012, passed by the Trial Court, application was allowed and Kamini Sood was arrayed as defendant No.2. 8. Defendant No.2 filed Written Statement on 6.10.2012, relevant portion whereof, for adjudication of present appeal, is as under: “PRELIMINARY OBJECTIONS. 1. That the plaintiff has no cause of action to file and maintain the present suit against the replying defendant and the suit is liable to be dismissed with costs at the very outset. 8. Defendant No.2 filed Written Statement on 6.10.2012, relevant portion whereof, for adjudication of present appeal, is as under: “PRELIMINARY OBJECTIONS. 1. That the plaintiff has no cause of action to file and maintain the present suit against the replying defendant and the suit is liable to be dismissed with costs at the very outset. The defendant No. 1 is the husband of replying defendant who was the tenant in the premises and using the premises for the last about ten years, and when the defendant No. 1 deserted the replying defendant, the replying defendant had acquired the tenancy rights of the premises named as Mohan Niwas, Near Anand Bhawan, Bharari Road, Shimla, H.P. The ownership of the building known as Mohan Niwas, was in the name of Shri Chander Mohan Sharma and the defendants were the tenants under him, and the said Shri Chander Mohan Sharma had neither told the replying defendants about any sale of the premises, nor handed over the vacant possession of the premises in question i.e. Mohan Niwas, Near Anand Bhawan, Bharari Road, Shimla, H.P., in the first floor of the building to anyone. This being the factual position, the plaintiff who has no right title or interest in the premises in question, the plaint filed is malafide and liable to be dismissed. ON MERITS 1. Para 1 of the plaint is denied for want of knowledge. However, Sh. Chander Mohan S/o late Sh. Madan Mohan Sharma was the owner of Mohan Niwas, Ever Sunny, near Bharari road, Shimla, wherein the replying defendant was tenant of Sh. Chander Mohan for last about 10 years and still residing there. The replying defendant was residing there alongwith her husband and children, and now the present defendant is residing there, alongwith her children. … … …” 9. After taking into consideration the material placed on record by the parties, the Civil Judge allowed the suit by passing the following relief: “In the light of the findings of this Court on the aforesaid issues, the present suit of the plaintiff is hereby partly decreed to the effect that the plaintiff is entitled to decree of possession qua the suit property against the defendant No.1, who is accordingly, directed to handover the vacant and peaceful possession of the suit property to the plaintiff. ……” 10. Defendant No.1 did not contest the suit at any point of time and remained ex-parte. ……” 10. Defendant No.1 did not contest the suit at any point of time and remained ex-parte. Defendant No.2 did not assail the judgment and decree dated 7.7.2018 passed by Civil Judge. However, plaintiff filed an appeal for modifying the judgment and decree passed by the Civil Judge for passing a decree of possession against both defendants and also for granting use and occupation charges, as prayed in the plaint. 11. After considering the material on record, judgment and decree passed by the Trial Court have been modified by the District Judge to the extent referred supra. 12. In appeal, defendant No.1 was respondent No.1 and he was proceeded ex-parte and did not contest the appeal. 13. In view of conduct of defendant No.1 Vijay Sood, as he did not contest the suit as well as appeal and remained ex- parte, no notice was and is required to be issued to him in this appeal in view of provisions of sub rule (3) of Rule 14 of Order 41 CPC, as amended for Delhi, Himachal Pradesh, Punjab and Haryana High Courts, quoted in (Quoted in ‘Code of Civil Procedure’ by Hon’ble Justice C.K. Thakker), which read as under: “Delhi, Himachal Pradesh and Punjab, Haryana and Chandigarh.—(i) Add the following as sub-rule (3): “(3) it shall be in the discretion of the appellate court to make an order, at any stage of the appeal whether on the application of any party or on its own motion, dispensing with service of such notice on any respondent who did not appear, either at the hearing in the court whose decree is complained of, or at any proceedings subsequent to the decree of that court, or on the legal representatives of any such respondent: Provided that— (a) That court may require notice of the appeal to be published in any newspaper or in such other manner as it may direct: (b) No such order shall preclude any such respondent or legal representative from appearing to contest the appeal.”” 14. Even otherwise, interest of defendant No.1, being husband of defendant No.2, is being contested by his wife, whereas he has not chosen to contest the matter and, therefore, his service in present appeal is required to be dispensed with. 15. Even otherwise, interest of defendant No.1, being husband of defendant No.2, is being contested by his wife, whereas he has not chosen to contest the matter and, therefore, his service in present appeal is required to be dispensed with. 15. From perusal of prayer in the Civil Suit, it is apparent that suit has been filed for decree of possession against defendant and also for damages on account of use and occupation charges from the defendant. From the contents of the application filed by defendant No.2, under Order 1 Rule 10 CPC, it is more than clear that she sought her impleadment claiming her right through her husband Vijay Sood (defendant No.1) to stay in the matrimonial house being wife of defendant No.1. She has not claimed any right in the premises in reference independently than the right of her husband defendant No.1. She is claiming right to occupy and continue in possession being a family member of defendant No.1. 16. In absence of prayer against defendant No.2, no relief could have been granted in favour of plaintiff and against her and, therefore, it has been contended that no decree for possession, damages, etc. could have been passed, especially in view of Order 7 Rule 5 CPC. 17. Learned counsel for defendant No.2, in support of contentions raised in present appeal, has placed reliance upon The State of Orissa v. Madan Gopal Rungta, reported in AIR 1952 SC 12 ; Dr. Shehla Burney & Ors vs Syed Ali Mossa Raza (Dead) by LRs, reported in 2011(2) Civil Court Cases 599 (SC); and Mrs. Akella Lalitha v. Sri Konda Hanumantha Rao & Anr., reported in 2022 LiveLaw (SC) 638 = AIR 2022 SC 3544 . 18. For discussion hereinafter, case law referred by defendant No.2 is of no help to her. 19. Order 7 Rule 5 CPC reads as under: “5. Defendant’s interest and liability to be shown.- The plaint shall show that the defendant is or claims to be interested in the subject-matter, and that he is liable to be called upon to answer the plaintiff’s demand.” 20. 19. Order 7 Rule 5 CPC reads as under: “5. Defendant’s interest and liability to be shown.- The plaint shall show that the defendant is or claims to be interested in the subject-matter, and that he is liable to be called upon to answer the plaintiff’s demand.” 20. In present case, defendant No.2 is claiming her right through her husband who was original defendant (now defendant No.1) and she was well aware about the prayer made in the plaint and the subject-matter involved in the matter and was claiming her right to stay, with averments that suit premises is her matrimonial residence. 21. After her impleadment, defendant No.2 filed a detailed Written Statement contesting the averments made in the plaint. Therefore, it cannot be said that she was not aware about plaintiff’s claim or interest of parties in the property and liability incurring for retaining the same or with respect to prayer of plaintiff for eviction from the premises in reference. 22. In the facts and circumstances of the case, noticed supra, here it is a case where the relief granted by the Courts below appears to have been granted against defendant No.2 without specific prayer for that, but on going through record it has borne out from the pleadings that the relief granted is in consonance with the pleadings, and defendant No.2, being well aware of relief claimed and the basis on which she was claiming right to stay in the premises in question, was having an opportunity to oppose and resist the relief claimed in the plaint, which has been granted by the Courts below. As defendant No.2 was claiming her right through right of defendant No.1 to retain possession of the suit premises, it cannot be said that the relief sought in the plaint was not against defendant No.2 and defendant No.2 was not well aware about it, and she had also contested the suit as such. Therefore, in peculiar given facts and circumstances of the case decree passed against defendant No.1 was enforceable against defendant No.2 also, even if the judgment passed by the Civil Judge would not have been modified by the District Judge. Modification by the District Judge, as a matter of fact, is clarificatory in nature. 23. Therefore, in peculiar given facts and circumstances of the case decree passed against defendant No.1 was enforceable against defendant No.2 also, even if the judgment passed by the Civil Judge would not have been modified by the District Judge. Modification by the District Judge, as a matter of fact, is clarificatory in nature. 23. Neither it is nor it was claim of defendant No.2 that she was keeping the premises in question independent of defendant No.1 – her husband, rather she was claiming her right through him and, therefore, there was no necessity for amendment of prayer for making specific prayer against each and every family member. Admittedly, plaintiff is claiming possession from defendant No.1 and defendant No.2 is claiming her right being derived through defendant No.1 being his legally wedded wife and she has contested the suit on the same line and, therefore, order of eviction and direction to defendant No.1 to pay damages/use and occupation charges also includes direction to pay the rent by his family for keeping/ retaining possession/occupying the premises in reference. 24. It is also noticeable that had defendant No.1 been contesting the suit, there would have been no occasion of impleadment of defendant No.2 as she was impleaded for defending the suit being wife of defendant No.1 and, therefore, there was no necessity of independent prayer against defendant No.2 and, thus, plea of defendant No.2, that in absence of specific prayer against her no decree could have been passed against her is negatived. 25. In the pleadings of the parties and nature of the stand taken by them, it cannot be said that no relief has been claimed against defendant No.2. From the record, it is also evidently clear that there was prayer for damages on account of use and occupation charges of the premises in reference and, therefore, modification made by District Judge, directing both the defendants to handover the possession and also awarding damages in the shape of use and occupation charges, with direction to the defendants to pay the same, is not beyond the scope of pleadings and the evidence led by the parties in the suit. 26. Therefore, judgment and decrees passed by the Courts below cannot be said to be against law and the facts of the case. 27. There is no perversity in the impugned judgments and decrees. 26. Therefore, judgment and decrees passed by the Courts below cannot be said to be against law and the facts of the case. 27. There is no perversity in the impugned judgments and decrees. District Judge has not committed any illegality or irregularity or perversity by modifying the judgment and decree passed by the Civil Judge by directing both the defendants to handover the possession. Grant of relief with respect to damage is also in consonance with the claim set up by the plaintiff in the prayer made in the plaint. Therefore, the substantial questions of law are answered against the plea taken by defendant No.2 – appellant. 28. Accordingly, the issue raised in substantial questions of law for assailing the impugned judgments and decrees is rejected and the appeal is dismissed being devoid of merit. The appeal stands disposed of in the aforesaid terms, so also pending application(s), if any.