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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

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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

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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

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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

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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.

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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.

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