Point of Law: Making of decree for permanent prohibitory injunction - First appellate Court shall proceed to make, a fresh decision, in accordance with law, upon Civil Appeal within four months thereafter.

JUDGMENT :

The plaintiff instituted civil suit No. 80/1 of 95/93,before the learned sub-judge, 1st Class, Bilaspur, H.P. In the afore civil suit, the plaintiffs claimed the making of a decree of permanent prohibitory injunction, vis-à-vis, the suit khasra Nos., and, against the defendants. The afore civil suit became decreed by the learned trial Judge, through its verdict made thereon on 7.2.1996. The afore made verdict became challenged by the aggrieved defendants, before the first appellate Court, through theirs casting there before, Civil Appeal No. 23 of 1996.The learned First appellate Court, through its verdict, made thereon, on 15.5.2004,partly allowed the defendants’ appeal, and modified the verdict of the learned trial Court hence in the hereinafter extracted manner :

“In view of my findings on point No. 1, being partly in favour of the appellants and as against the respondents, the plaintiffs are not entitled to the relief of injunction in regard to the land measuring 0-2 biswas comprised in khasra No. 130/1 as shown in Ext. PC while their suit for permanent injunction for the remaining part of the land shall stand decreed for permanent injunction. Decree sheet be prepared accordingly. One copy of the judgment alongwith record of the trial Court be sent back forthwith record of the trial Court be sent back forthwith and the appeal file be consigned to the record room after due completion. Parties to bear their own costs.”

When the appeal came up for hearing, with the consent of the parties, it became admitted also on the hereinafter extracted substantial question of law:

“Whether the judgment is liable to be set aside on the ground that the appellants/defendants have not impleaded one of the necessary party in the appeal named Shri Hari Ram who was plaintiff before the trial?

2. Moreover, with the consent of the counsel appearing for the contesting litigants, this Court, proceeds to only answer, the substantial question of law, as became formulated on 13.8.2021. In determining the tenability of the formulated substantial question of law, the extraction of the description of the memo of parties carried in civil suit No. 80/1 of 95/93, is imperative, and, is, reproduced hereinafter :

“1. Lachhman

2. Kanshi sons of Sh. Chandu

3. Anant Ram

4. Devi Ram

5. Hari Ram

6. Prem Lal

sons of Shri Baziru

All residents of village Gori, Pargana, Bahadurpur, Tehsil Sadar, District Bilaspur, H.P. – Plaintiffs

Versus

1. Tulsi S/o Sh. Parsa

2. Thakur Dass

3. Sada Ram

4. Dev Raj

5. Hakim

6. Jaggi

sons of Tulsi

All residents of Village Gori, Pargana Bahadurpur, Tehsil Sadar, Distt. Bilaspur, H.P. – Defendants”

It is apparent from a reading of the afore extracted description of the memo of parties, of the contesting litigants, as carried in civil suit (supra), that one Hari Ram, was arrayed therein as co-plaintiff No.5. However, a perusal of the description of the memo of parties, as drawn in Civil Appeal No.23 of 1996, as became preferred before the learned first appellate Court, by the aggrieved defendants, and, as becomes extracted hereinafter :

“1. Shri Tulsi S/o Shri Parsa

2. Thakur Dass, S/o Shri Tulsi

3. Sada Ram/S/o Shri Tulsi

4. Dev Raj S/o Shri Tulsi

5. Hakim S/o Shri Tulsi

6. Jaggi S/o Shri Tulsi

Residents of village Gori, Pargna, Bahadurpur, Tehsil Sadar, District Bilaspur, H.P. …Appellants

Versus

1. Shri Lachhman, S/o Shri Chandu

2. Shri Kanshi S/o Shri Chandu

3. Shri Ganpat S/o Shri Bajira

4. Shri Anant Ram, S/o Shri Bajira

5. Shri Devi Ram, S/o Shri Bajira

6. Shri Prem Lal, S/o Shri Bajira

Residents of village Gori, Pargna Bahadurpur, Tehsil Sadar, District Bilaspur, H.P. …Respondents”

does unfold, that the name of Hari Ram does not occur therein. Consequently, it appears that though Hari Ram is a necessary party in both the Civil appeal, and, in the civil suit, yet his name, did not, occur in the memo of parties drawn in the Civil Appeal, instituted before the learned First Appellate Court. Moreover, despite his being a necessary party, also in the extant reg