1. On 27-1-1971, Kalu father of the non-applicants Bhagwan and Balu and husband of defendant Tulsibai had sold the suit land to the applicant Champalal by two separately executed sale deeds. On the same date i.e. 27-1-1971, the plaintiff Bhagwan filed a suit against his father Kalu, his brother and his mother Tulsibai claiming, a declaration and an order of perpetual injunction that the suit property was the ancestral property in the hands of Kalu and he alone had no right, title or interest to alienate the same by sale in favour of the applicant Champalal. In the written statement filed by Kalu, it was alleged by him, that there was a partition between him and his two sons Bhagwan and Balu that on or before this suit he had executed the sale deed in favour of the applicant Champalal that he had delivered possession also of the suit land to Champalal and that in these circumstances Champalal was a necessary party and without his being joined as a defendant the suit could not proceed. On the pleadings between the parties one of the issue's (issue No.5) was as to whether Champalal was or was not a necessary party to the suit. This issue along with other issues was answered in favour of the defendants and the suit was dismissed both on merits as also on the ground of non-joinder of Champalal, who was held to be a necessary party to the suit. After the suit was dismissed on 7-8-1975. Kalu died on 10-8-1975. An appeal against the said decree dismissing the suit was filed on 5-9-1975. In this appeal the plaintiff Bhagwan impleaded the defendants Balu and Tulsibai as respondents land 2 and also impleaded Champalal as respondent No. 3 Along with the memo of appeal an application was also filed under Order 6, rule 17 Civil Procedure Code with a prayer that the plaintiff Bhagwan be permitted to implead Champalal as defendant No.3 in the original suit. This application was opposed by the applicant Champalal after be was served with a notice of this application. By the impugned order the said application was allowed and Champalal was permitted to be impledcd as defendant No.3 in the original suit. It is against this order that the present revision application has been filed.

Held: It is clear from the trial Court's record that in the written statement filed by the defendants, it was specifically pleaded that Champalal was a necessary party to the suit and that his non-joinder entailed dismissal of the suit. The trial Court raised an issue on this objection of the defendants and in the final judgment this issue was decided against the plaintiff. The other issues regarding the merits of the claim made by the plaintiff were also decided against him. In the plaint as amended in the trial Court, the plaintiff had specifically stated that the suit land bad been transferred in favour of Champalal. With these facts on record, there was no propriety for allowing the application at the appellate stage. The appellate Court should also have considered the objection raised by the defendant Kalu in the written statement and should have considered as to what was the effect of Champalal being not joined as a defendant in the trial Court. By allowing the said application without deciding the appeal on merits, the learned lower appellate Court committed a serious error. In my opinion, the application for amendment made by the plaintiff-non-applicant Bhagwan should have been heard along with the merits of the appeal and should not have been disposed of in the manner it has been disposed of by impugned order.

2. Accordingly for the reasons given above, this application is allowed. The impugned order allowing the application dated 5-9-1975 for amendment of the plaint is hereby set aside and the learned lower appellate Court is directed to hear the appeal on merits and the said application also and then decided as to whether the prayer for amendment that is for allowing the plaintiff Bhagwan to implead Champalal as a defendant in the original suit, s