The court emphasized the mandatory nature of Order 9 Rule 8 CPC, which prohibits the Trial Court from deciding a suit on merits in the absence of the plaintiff.

JUDGMENT

Alka Sarin, J. (Oral) - The challenge in the present appeal is to the order dated 26.05.2022 passed by the lower Appellate Court whereby the matter has been remanded to the Trial Court for deciding afresh on the question of maintainability.

2. The brief facts relevant to the present lis are that the plaintiffrespondent No.1 filed a suit for declaration to the effect that he (plaintiffrespondent No.1) and defendant Nos.11 to 13 (respondent Nos.8 to 10 herein) are joint owners in possession to the extent of 1/3rd share in the suit land fully described in the head-note of the plaint. It was averred in the plaint that the plaintiff-respondent No.1 is the son of late Harchand Singh son of Amar Singh and defendant Nos.11 to 13 (respondent Nos.8 to 10 herein) are the widow and daughters of the brother of the plaintiff. The defendant-appellants herein filed their written statement raising the preliminary objection that the suit itself was not maintainable being barred by the principles of res judicata and under Order 2 Rule 2 of the Code of Civil Procedure, 1908 (CPC) amongst others. It is pertinent to note that earlier an application under Order 7 Rule 11 CPC was filed by the defendant-appellants which came to be dismissed. Against the dismissal of the said application Civil Revision No.7854 of 2013 was preferred. Vide order dated 03.07.2018, though the revision petition was dismissed, it was directed that the issue regarding maintainability be decided in the first instance. Accordingly, issue No.2 qua maintainability was taken up at the first instance by the Trial Court. The onus of issue No.2 qua maintainability was on the defendant-appellants. The defendant-appellants led their evidence, however, none appeared on behalf of the plaintiff-respondent No.1 to rebut the evidence of the defendant-appellants. Vide judgment and decree dated 29.08.2018 the suit of the plaintiff-respondent No.1 was dismissed on merits as being not maintainable. Aggrieved by the said judgment and decree the plaintiff-respondent No.1 preferred an appeal and vide order dated 26.05.2022 the case was remanded back to the Trial Court by passing the following order :

'18. In view of above discussion, the instant appeal is accepted. Impugned judgment and decree are set aside. However, as the matter pertains to the year 2005, both the parties very fairly conceded to the advice of this Court and made the following statements :

'Learned counsel for appellant has suffered statement to the effect that he will cross-examine DW Kashmira Singh and Sohan Singh on the question of maintainability in one effective opportunity and will not seek the adjournment for the purpose of their crossexamination. He further stated that the plaintiff would lead the evidence on issue no.2 regarding maintainability within two effective opportunities and will not seek further adjournment for leading the evidence as the matter is old one. Learned counsel for respondent nos. 3 and 4 (iii) also suffered statement to the effect that the respondents/defendants will produce Kashmira Singh and Sohan Singh for their crossexamination by plaintiff/appellant in the month of July. Except for their cross-examination and for tendering of documents, no other evidence is required to be led on issue no.2.'

Accordingly, the respondents/defendants are directed to produce DW Kashimra Singh and DW Sohan Singh during the month of July, 2022 for their crossexamination and tendering of documents and no other evidence shall also be led by them on their behalf and the appellant/plaintiff is also made bound down to cross-examine the above said witnesses on the question of maintainability of the suit, in one effective opportunity and will not seek any adjournment. The appellant/plaintiff shall lead his evidence on issue no.2 regarding maintainability of the suit in two effective opportunities and not to seek further adjournment for leading evidence.

With these observations, the matter is remanded back for deciding th