The main legal point established in the judgment is that while the general rule is that a suit cannot be dismissed on the ground of non-joinder of proper parties, this rule does not apply in the case of non-joinder of necessary parties. The power to add necessary parties should be exercised at the trial stage and not at the appeal stage, especially if the plaintiff fails to implead the necessary parties despite objections at the earliest.

Ms. Kamlesh Sharma, J.—Appellant and respondents 2 to 7 are the defendants, whereas, respondent Nor. 1 is the plaintiff and respondents 8 and 9 are the proforma defendants and they will be referred to as such in this judgment. The appellant-defendant is aggrieved by the order dated 16.2.2000 passed by the District Judge, Shimla, whereby the appeal of the plaintiff was accepted and the decree and judgment dated 5.12.1997 of the Sub Judge 1st Class Court No. 2, Rohru, District Shimla was set aside and the case was remanded with a direction to afford a reasonable opportunity to the plaintiff to implead the legal heirs of Jiu Nath and Patu as party to the suit and thereafter try the same afresh. It is further directed that in case the plaintiff does not comply with the direction for the impleadment of legal heirs of said Jiu Nath and Patu trial Court may dismiss the suit by invoking the provisions of the proviso to Order 1 Rule 9 CPC.

2. The brief facts of the case are that the plaintiff filed suit for declaration, inter alia, that he along with proforma defendants has become owner of the suit by way of adverse possession and original defendant Balku, the predecessor-in-interest of defendants 2 to 5, has no right, title or interest to alienate or transfer the same to other defendants and also for permanent prohibitory injunction.

3. In the written statement filed on behalf of appellant-defendant and original defendant Balku, whereas, the other defendants were ex parte, one of the preliminary objections raised was that the suit was bad for non-impleadment of Jiu Nath and Padoo (Patu), the brothers of original defendant Balku, who were shown joint owners in possession of the suit land in the revenue records. It was further alleged that Jiu Nath and Padoo (Patu) were alive and were living in Sarahan and Shimla, respectively, with their families and even if they were dead they were survived by their sons and daughters, who are necessary parties.

4. In the replication filed by the plaintiff the averments made in the plaint were reiterated and it was alleged that the other co-sharers Jiu Nath and Padoo (Patu) were no more and there whereabouts were not known in the area for the last more than 20 years. Oh the pleadings of the parties issue No, 9 was framed, "whether the suit of the plaintiff is bad for non-joinder of necessary parties”

5. The trial Court decided issue No. 9 in affirmative holding that thotigh, the plaintiff in his deposition struck to his stand that whereabouts of Jiu Nath and Padoo (Patu) were not known since his age of discretion and his witness Jagar Nath supported him, yet defendant Ganga Ram, son of original defendant Balku, DW-1, has categorically stated that Jiu Nath, who was his paternal uncle (CHACHA) has left behind three sons and three daughters, who are living in Rampur, whereas his another paternal uncle Padoo (Patu) was survived by one son who is residing in Shimla. In the revenue record also, more specifically, in the latest Misal Haquiat, Ex. DX, Jiu Nath and Padoo (Patu) are shown as co-owners along with original defendant Balku. Despite this evidence on record the plaintiff failed to implead the legal representatives of Jiu Nath and Padoo (Patu). Rather, in his appeal before the District Judge he has assailed the findings on issue No. 9 as erroneous. While accepting the appeal of the plaintiff the District Judge relying upon the judgments of Gauhati High Court in Ksh. Achouba Singh and others v. L. Achouba Singh and others, AIR 1984 Gauhati 39 and Moti Mia and others v. Abdul Haque and others, AIR, 1984 Gauhati 77, has held that after coming to the conclusion that the suit was bad for non-joinder of parties the trial Court was required to give a reasonable opportunity to the plaintiff to implead the necessary parties in exercise of powers under Order 1 Rule 10 CPC and not to dismiss the suit on this count also besides dismissing it on merit. The appellant-defendant has assailed these findings in t