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.