When a suit is dismissed for non joinder of necessary parties, the appellate court cannot permit the lacunae to be filled up by allowing an application for impleadment without deciding the merit of the main appeal.

Ajay Mohan Goel, J.

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 suit and thereafter have had remanded the matter back to the learned trial court for fresh adjudication.

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.

4. 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 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