Himachal Pradesh High Court
Shashi Pal vs Desh Raj And Others on 15 December, 2017
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
FAO No. 391 of 2016
Decided on: 15.12.2017.
.
Shashi Pal ....Appellant.
Versus
Desh Raj and others ... Respondents.
................................................................................................
Coram
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 Yes.
For the appellant.r : Mr. Dheeraj K. Vashisht, Advocate.
For respondents. : Ms. Seema Guleria, Advocate for
respondents No.1 to 4.
None for remaining respondents.
Ajay Mohan Goel, J. (Oral)
In the present appeal the moot issue involved is as to whether learned first appellate court, in an appeal filed before it against the judgment and decree passed by learned trial court, whereby the suit so instituted by the plaintiff was dismissed, inter alia, on the ground that the suit was bad for non joinder of necessary parties, could have had allowed an application under Order 1 Rule 10 of the Civil Procedure Code (in short 'CPC') for impleading that party as defendant, non joinder of which had resulted in the dismissal of the 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 16/12/2017 23:05:04 :::HCHP 2suit and thereafter have had remanded the matter back to the learned trial court for fresh adjudication.
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2. In brief, facts necessary for adjudication of the present appeal are as under: A suit filed by respondents/plaintiffs (hereinafter referred to as 'plaintiffs'), inter alia, for declaration that they along with defendants were joint owners in equal shares of the suit land and further that a gift deed got executed by defendant from his father, Lachman Dass @ Lachoo, dated 27.8.1990 was illegal, null and void so also were mutations etc. entered on the basis of same was dismissed by learned trial court vide judgment and decree dated 28.12.2013, inter alia, on the ground that deceased Lachman Dass in addition to Harbans Lal and Hans Raj were also survived by his daughters, who was a necessary party for adjudication of the case and as she had not been impleaded as a defendant, the suit was not maintainable as all necessary parties had not been impleaded as defendants.
3. Judgment and decree so passed by learned trial court was assailed by way of appeal by the plaintiffs. During the pendency of the appeal, application was filed by the appellants/plaintiffs under Order 1 Rule 10 of the CPC to implead Smt. Bhajni Devi daughter of Lachman Dass as party defendant in the appeal.
::: Downloaded on - 16/12/2017 23:05:04 :::HCHP 34. Vide order dated 6.6.2016, application so filed was allowed by learned appellate court by holding that an application .
under Order 1 Rule 10 of the CPC could be filed at any stage. It was further held by learned appellate court that Smt. Bhajni Devi being one of the legal heirs of Lachman Dass, in her absence, no proper adjudication can take place qua inheritance of Lachman Dass.
5. Thereafter vide judgment dated 15.6.2016 learned appellate court remanded the case back to learned trial court with the direction that newly added proforma defendant Smt. Bhajni Devi be summoned as defendant. She be afforded of an opportunity to file her written statement and to lead evidence and learned trial court was directed to dispose of the matter within a period of six months.
6. Feeling aggrieved, defendant has filed the present appeal assailing both the orders so passed by learned appellate court dated 6.6.2016 as well as judgment dated 15.6.2016.
7. I have heard learned counsel for the parties and have also gone through the impugned order and judgment as well as the records of the case.
8. It is not in dispute that an application under Order 1 Rule 10 of the CPC for impleadment of party in proceedings can be filed and allowed at any stage during the pendency of proceedings. The ::: Downloaded on - 16/12/2017 23:05:04 :::HCHP 4 same can also be done during the pendency of appellate proceedings, however, what has to be seen is that in case the suit of a party stands .
dismissed by learned trial court, inter alia, on the ground that the suit was bad for mis joinder of necessary parties, then can said lacunae in the suit be permitted to be filled up in appeal by way of an application under Order 1 Rule 10 of the CPC or not, without adjudication on merit in the main appeal?
9. Necessary party is a party in whose absence in a suit no decree at all can be passed and the suit is liable to be dismissed for want of necessary party. It is a well settled proposition of law that if a necessary party in the suit has not been so impleaded, then the plaintiffs have no right to maintain the suit. In other words, non joinder of necessary party in a suit is fatal.
10. Coming to the facts of this case, dominus litus obviously was with plaintiffs and plaintiffs in their wisdom opted not to array Smt. Bhajni Devi as party defendants in the civil suit. On this count an objection was raised by the defendant qua the maintainability of the suit. Objection so raised by defendants found merit with learned trial court and the said court dismissed the suit of plaintiffs by, inter alia, holding that the same was not maintainable as necessary party had not been impleaded as defendants. It is a matter of record that there was ::: Downloaded on - 16/12/2017 23:05:04 :::HCHP 5 objection in the written statement itself by the defendant with regard to the maintainability of the suit. Not only this, during the pendency .
of the suit no application was filed by the plaintiffs to implead Smt. Bhajni Devi as a party defendant. In this view of the matter, once the plaintiffs had suffered a decree on account of non joinder of necessary parties, then in my considered view, in appeal, learned appellate court could not have had permitted the said lacunae to have been filled up by the plaintiffs by allowing application so filed before it under Order 1 Rule 10 of the CPC for impleading that person as a party respondent/defendant, non impleadment of which led to the dismissal of the suit. This very important aspect of the matter has not been appreciated by learned appellate court while passing the impugned order and judgment.
11. No doubt, an application under Order 1 Rule 10 of the CPC can be filed and allowed at the appellate stage, but however, this does not means that because the court has got power to allow an application at appellate stage, therefore, such an application can be allowed by the court by divorcing itself from the facts of the case. In the present case, learned appellate court while allowing the application under Order 1 Rule 10 of the CPC and thereafter while remanding the case back erred in not appreciating that the suit of the plaintiffs, inter ::: Downloaded on - 16/12/2017 23:05:04 :::HCHP 6 alia, stood dismissed as not maintainable for non joinder of necessary parties, judgment and decree so passed by learned trial court stood .
assailed before it. It was a ground to be decided by the said appellate court as to whether the findings returned by learned trial court that the suit was not maintainable for want of necessary parties were correct findings or not. Rather than doing this, appellate court adopted a shortcut and allowed application filed under Order 1 Rule 10 by simply assigning the reason that such an application can be allowed even at an appellate stage. While doing so, learned appellate court erred in not appreciating that when a suit itself stood dismissed by learned trial court as not maintainable for non joinder of necessary parties, then the judgment and decree so passed by learned trial court could not have been permitted to have been frustrated by the plaintiff by allowing an application so filed by plaintiffs under Order 1 Rule 10 of the CPC.
In view of above discussion, I hold that order dated6.6.2016 passed by learned appellate court vide which it had allowed application under Order 1 Rule 10 of CPC filed by present respondents and judgment dated15.6.2016 vide which it remanded back the case to learned trial court are not sustainable in law and the same are set aside. Appeal is accordingly allowed. The case is ::: Downloaded on - 16/12/2017 23:05:04 :::HCHP 7 remanded back to learned appellate court with the direction that the appeal be decided by learned appellate court on merit on the grounds .
on which the judgment and decree passed by learned trial court stands assailed before it. Parties through their learned counsel are directed to appear before learned appellate court on 8.1.2018. Registry is directed to forthwith send the records of the case to learned appellate court.
(Ajay Mohan Goel) Judge 15th December, 2017.
(Guleria) ::: Downloaded on - 16/12/2017 23:05:04 :::HCHP