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Supreme Court of India

MANTI DEVI vs KISHUN SAH @ KISHUN DEO SAO on 23 March, 2017

Cites 2 provisionsCites 0 judgmentsCited by 0
C.A. No.-002014-002014 - 2009Official PDFBench Kurian Joseph, R. Banumathi, Kuttiyil Mathew JosephAdvocates T. MAHIPAL | GAURAV AGRAWAL
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

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 JUDGMENTplaintiffs 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:- JUDGMENT “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 JUDGMENT 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. [KURIAN JOSEPH] [R. BANUMATHI] NEW DELHI; MARCH 23, 2017. JUDGMENT