MANTI DEVI & ANR.versusKISHUN SAH @ KISHUN DEO SAO & ORS.

                        [2017] 2 S.C.R. 935



                      MANTI DEVI & ANR.                                 A
                                 v.
          KISHUN SAH @ KISHUN DEO SAO & ORS.
                  (Civil A,ppeal No. 2014 of2009)
                         MARCH 23, 2017                                 B

       [KURIAN JOSEPH AND R. BANUMATHI, JJ.)
       Code of Civil Procedure, 1908- ss. 99 and 141 -Applicability
of s. 99 to revision, in view of s.141 - Eviction suit by appe/lant-
plaintiff decreed by trial court - Reversed by High Court in revision
on account of non-joinderlmisjoinder of parties - Held: U/s. 99,
                                                                        c
CPC no decree can be reversed or substantially varied in appeal
on account of any misjoinder or 1lon-joinder of parties not affecting
merits of the case - By virtue of s.141, procedure under the CPC 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     D
is provided u/s.99 in respect of appeal would apply to revision as
well - Judglnent of High Court passed in revision, setting l!side the
decree of trial court on ground of misjoinder or non-joinder .of
parties, not affecting the merits of the case, is set aside -
Respondents/tenants granted time to surrender vacant and peaceful
                                                                        E
possession, subject to filing of usual undertaking within six weeks.
      Allowing the appeal, the Conrt
      HELD: Section 99, CPC 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 CPC,                F
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 CPC in respect of appeal would apply to revision as well.
[Para 5) [938-B-C)
                                                                        G
     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2014
of2009.
       From the Judgment and Or.derdated 08.09,2006 of the High Court
of Judicature at Patna in Civil Revision No. 115 of2006.
                                                                        H
                              935
936            SUPREME COURT REPORTS                             [2017] 2 S.C.R.


A           Nagendra Rai, Sr. Adv.. Ms. Prerna Singh, T. Mahipal, Advs. for
      the Appellants.
            Gaurav Agrawal, Adv. for the Respondents.
            The Judgment of the Court was delivered by

B            KURIAN, J. I. The appellants filed a suit before the Munsif
      Court, Patna City forejectment of two katras on the ground of personal
      need. The appellants are mother and son. The suit was decre'!d on
      the following terms:-
            "27. Issue No.II:- Have the plaintiff got valid cause of action for
c           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. I. The defendant no. I denied to accept the
            plaintiff as his landlord and refused to pay the monthly rent to the
D
            plaintiffs. The defendant No. I 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
E           shoes of their vendors and by the fiction of law they become the
            landlord. Jn this view of the matter l find that the plaintiffs have
            got valid cause of action for the suit. Jn this way, Jssue NO. II is
            also decided in favour of the plaintiffs .
           . 28. Jssue No. 7:-Are the plaintiffs entitled to a decree for eviction
 F           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
G           the real owners and they become the landlord or the aforesaid
            katra. In view ofthe above conclusion l 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.

H
 MANTI DEV! & ANR. v. KISHUN SAH @ KISHUN DEO SAO                              937
                & ORS. [KURIAN, J.)

      29. In view of the above conclusion I find and hold that the             A
      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
                                                                                B
      law."
        2. The respondents/tenants pursued the matter in revision before
the High Court. The High Coutt took the view that the suit was liable to.
be dismissed for misjoinder of parties. The relevant consideration reads
as follows:-
                                                                                c
      "ln my view, the present case is not saved for the sill)ple reason
      that where the plaintiffs had jointly petitioned to be the landlord
      and it is found that they are not "landlord" forthe purposes of the
      suit in question, then jointly they has no causes ofaction. Further
      individually they had distinct causes of action as against distinct
      properties. The evidence does not distinguish the properties. It          D
      deals with the property as co owner which is incorrect. Their suit
      was instituted on a wrong and misconceived premise of joint/co
      ownership 6f 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                  E
      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, learhed counsel
appearing for the respondents.                                                  F
       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       G
      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 pro.ceedings in
                                                                                H
938            SUPREME COURT REPORTS                           (2017] 2 S.C.R.


A           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
B     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
c     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
D     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.
E

      Divya Pandey                                                  Appeal allowed.