MANTI DEVI & ANR. Vs. KISHUN SAH @ KISHUN DEO SAO & ORS.
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 2014 of 2009, Judgment Date: Mar 23, 2017
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S). 2014/2009
MANTI DEVI & ANR. APPELLANT(S)
VERSUS
KISHUN SAH @ KISHUN DEO SAO & ORS. RESPONDENT(S)
J U D G M E N T
KURIAN, J.
The appellants filed a suit before the Munsif Court, Patna City for
ejectment of two katras on the ground of personal need. The appellants are
mother and son. The suit was decreed on the following terms:-
“27. Issue No.II:- Have the plaintiff got valid cause of action for the
suit.
The plaintiffs have sought for eviction of the defendants from the
suit katras on the ground of their personal necessity. The plaintiffs have
purchased the suit katra from the original landlord of the defendant no.1.
The defendant no.1 denied to accept the plaintiff as his landlord and
refused to pay the monthly rent to the plaintiffs. The defendant No.1
refused to pay rent to the plaintiffs on the ground that the plaintiffs
were not landlord of the suit katra. The defendant no.1 also denied the
relationship of tenant and landlord with the plaintiffs. It has been
concluded above that the plaintiffs being the purchaser of the suit
property stepped into the shoes of their vendors and by the fiction of law
they become the landlord. In this view of the matter I find that the
plaintiffs have got valid cause of action for the suit. In this way, Issue
NO.II is also decided in favour of the plaintiffs.
28. Issue No.7:- Are the plaintiffs entitled to a decree for
eviction as sought for or to any other relief or reliefs.
It has been concluded above that the plaintiffs require the suit
katras for their personal necessity and as such they are entitled to get
the suit katras vacated by the tenants. It has also been concluded that
the plaintiffs have purchased the suit katras from the real owners and they
become the landlord or the aforesaid katra. In view of the above
conclusion I also come to the conclusion that the plaintiff is entitled to
get eviction decree against the defendants. In the facts and circumstances
of the case the plaintiffs are also entitled to the cost of the suit.
29. In view of the above conclusion I find and hold that the
defendants are liable to be evicted from the suit katras. Accordingly, the
defendants are directed to vacate the suit katras within two months from
the date of this order and to hand over the vacant possession thereof
failing which the plaintiff shall be entitled to vacant possession of the
suit katras by the process of law.”
2. The respondents/tenants pursued the matter in revision before the
High Court. The High Court took the view that the suit was liable to be
dismissed for misjoinder of parties. The relevant consideration reads as
follows:-
“In my view, the present case is not saved for the simple reason that where
the plaintiffs had jointly petitioned to be the landlord and it is found
that they are not “landlord” for the purposes of the suit in question, then
jointly they has no causes of action. Further individually they had
distinct causes of action as against distinct properties. The evidence
does not distinguish the properties. It deals with the property as co
owner which is incorrect. Their suit was instituted on a wrong and
misconceived premise of joint/co ownership of premises. They had no joint
personal necessity. In my view, it materially affects the merit of the
case and is accordingly not saved by Section 99 of the Code of Civil
Procedure. The decree of eviction is thus liable to be reversed and is
accordingly set aside and the suit is dismissed.”
3. We have heard Mr. Nagendra Rai, learned senior counsel appearing for
the appellants and Mr. Gaurav Agrawal, learned counsel appearing for the
respondents.
4. Learned senior counsel, inviting our attention to Section 99 of the
Code of Civil Procedure, contends that no decree shall be reversed or
varied substantially on account of non-joinder or misjoinder of parties.
Section 99 of the Code of Civil Procedure reads as follows:-
“99. No decree to be reversed or modified for error or irregularity not
affecting merits or jurisdiction.- No decree shall be reversed or
substantially varied, nor shall any case be remanded, in appeal on account
of any misjoinder or non-joinder of parties or causes of action or any
error, defect or irregularity in any proceedings in the suit, not affecting
the merits of the case or the jurisdiction of the court:
Provided that nothing in this section shall apply to non-joinder of a
necessary party.”
5. The provision, in our view, is crystal clear. No decree can be
reversed or substantially varied in appeal on account of misjoinder or non-
joinder of parties. Under Section 141 of the Code of Civil Procedure,
procedure under the Code in regard to suit shall be followed as far as it
can be made applicable to proceedings in any Court of Civil jurisdiction.
Therefore, what is provided under Section 99 of the Code of Civil Procedure
in respect of appeal would apply to revision as well.
6. The judgment of the High Court is set aside and the judgment and
decree of the Trial Court is restored. The appeal is allowed.
7. However, the respondents/tenants are granted time till 30.09.2017
to surrender vacant and peaceful possession, subject to their filing usual
undertaking within six weeks. If the undertaking, as above, is not filed
the respondents shall not be entitled for this extension of time for
surrendering vacant possession.
8. Pending application(s), if any, shall stand disposed of.
9. There shall be no orders as to costs.
.......................J.
[KURIAN JOSEPH]
.......................J.
[R. BANUMATHI]
NEW DELHI;
MARCH 23, 2017.