Thursday, 22 June 2017

Whether decree can be set aside on account of misjoinder or non-joinder of parties?

 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.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S). 2014/2009
MANTI DEVI & ANR.
 V
KISHUN SAH @ KISHUN DEO SAO & ORS. 
Dated:MARCH 23, 2017.
Citation: AIR 2017 SC 2002

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.

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