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2023 Supreme(Online)(HP) 15068
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Rakesh Kainthla, J
Bidhi Chand – Appellant
Versus
Hardial Singh – Respondent
FAO No. 305 of 2011
For the Appellants/Petitioners: N.K. Thakur, Divya Raj Singh Thakur
For the Respondents: Devyani Sharma, Basant Pal Thakur, Ajay Sharma, Atharv Sharma
An appellate court must decide a case on its merits if the record has sufficient evidence rather than remanding it. Once a court finds a suit is bad for non-joinder of necessary parties, it must dismiss the suit if the defect was not corrected despite timely objections.
Headnote:(A) Code of Civil Procedure, 1908 - Order 1, Rule 9 and Rule 10(2) - Non-joinder of necessary parties - Remand of matter - Law regarding remanding cases for impleading necessary parties - Effect of non-joinder of necessary parties - Once court concludes a suit is bad for non-joinder of necessary parties, the suit should be dismissed without granting an opportunity to implead parties if the defect remained unrectified despite timely objections. (Paras 10, 11, 20, 21)
(B) Civil Appeal - Power of remand - Appellate court mandate - Rule 23, 23-A, 24, and 25 of Order 41 - Appellate courts must decide cases on merits where evidence on record is sufficient - Unwarranted remand elongates litigation and defeats justice. (Paras 22, 23, 24, 25, 26)
Facts of the case:
Plaintiffs sought a declaration of ownership and injunction regarding property. Defendants raised objections regarding the non-joinder of necessary parties. The trial court initially decided the matter, which was eventually appealed. The first appellate court concluded that the suit suffered from non-joinder of necessary parties and remanded the case to the trial court to allow for the impleading of those parties. The appellants challenged this remand order, arguing that the appellate court should have decided the matter on its merits based on the available evidence.
Findings of Court:
The court held that the first appellate court erred in remanding the matter. It observed that the defect of non-joinder of necessary parties was brought to the plaintiff's notice at the earliest stage, yet the plaintiff failed to take corrective action. Therefore, the suit was liable to be dismissed on this ground rather than remanded. Furthermore, the court emphasized that appellate courts have a duty under Order 41, Rule 24, to determine a case finally if the evidence on record is sufficient, rather than resorting to remand.
Issues: Whether the first appellate court was justified in remanding the suit to the trial court for the purpose of impleading necessary parties, and whether the appeal is maintainable in its current form.
Ratio Decidendi: A suit cannot be remanded for the purpose of joining necessary parties if the plaintiff failed to exercise due diligence to implead them despite persistent objections. Under Order 41, Rule 24 of the Code of Civil Procedure, an appellate court is duty-bound to dispose of an appeal on its merits if sufficient evidence is available on record, and it should avoid issuing orders of remand that unnecessarily prolong litigation.
Result: Appeal allowed. The order of the first appellate court is set aside and the matter is remitted to the first appellate court to decide the case afresh on merits.
Rakesh Kainthla, Judge
The present appeal is directed against the judgment dated 20.6.2011, passed by the learned Additional District Judge, Una, vide which the appeal filed by respondents no. 1 to 5 (defendants before the learned Trial Court) was allowed and the matter was remanded to learned Trial Court to decide the same afresh. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).
Briefly stated, the facts giving rise to the present appeal are that the plaintiffs filed a civil suit before the learned Trial Court for seeking a declaration that they are owners in possession of the suit land mentioned in the head note of the plaint based on the Will executed by Kanta Devi and Mutation No. 473 sanctioned by the revenue authorities and sale deed dated 19.8.2000 executed by defendant no. 1 in favour of defendant no.2 are illegal, null and void. A consequential relief of permanent prohibitory injunction for restraining the defendants from taking forcible possession of the suit land was also sought. It was pleaded that the suit land was earlier owned and possessed by Kanta Devi. She executed a Will in favour of the plaintiffs and the plaintiffs are owners in possession of the suit land after 1.4.2002, the date of her death. The pedigree table of the parties is as under:-
| CHUHA | |||||
|---|---|---|---|---|---|
| Badawa Ram | Thakaria | ||||
| Mangtu | Bhagat Ram | Chand Ram | Gurdass | ||
| Kamla Devi | |||||
| Bidhi Chand | Tilak | Piare Lal | Nikka | Tarsem | Sham |
Kanta Devi was married to defendant no.1 about 33 years ago. Defendant No. 1 turned her out of his house within 3-4 months of the marriage by saying that she had a defect in her right foot. The matter was resolved through Khangi Divorce. Defendant No.1 solemnized his second marriage with Kashmiro Devi after 8-9 months of Khangi Divorce. Hardayal Singh, Shashi Pal, Rohit Kumar and Shama Devi were born to defendant no. 1 and Kashmiro. Plaintiffs and their predecessor-in-interest gave shelter to Kanta Devi and constructed one house for her. Kanta Devi started residing with the plaintiffs and the plaintiffs took care of her throughout her lifetime. Kanta Devi executed a Will in favour of the plaintiffs on 30.3.2000 in her sound disposing state of mind. She died on 1.4.2000 and her last rites were performed by the plaintiffs. The revenue authorities sanctioned the mutation in favour of defendant no. 1 which is bad. Defendant no.1 sold the land to defendant no.2 based on the mutation. The plaintiffs requested the defendants to acknowledge their title but in vain. Hence, the suit was filed to seek the relief mentioned above.
The suit was opposed by defendant no. 1 by filing a written statement, taking preliminary objection regarding lack of maintainability and locus-standi, plaintiffs being estopped from filing the present suit by their acts and conducts, the suit being bad for non-joinder of necessary parties and the suit having not been properly valued for the purpose of Court fees and jurisdiction. The contents of the plaint were denied on merits. However, it was admitted that the suit land was earlier owned and possessed by Kanta Devi. It was asserted that Kanta Devi was married to defendant no.1. She never expressed any intention to execute any document related to her estate. The defendant inherited the estate of Kanta Devi being her legal heir. The plaintiffs and proforma defendants propounded a false Will. They failed to prove the due execution of the Will before the revenue authorities and the mutation was attested in favour of defendant no.1. It was specifically denied that defendant no.1 had divorced Kanta Devi or that the plaintiffs had taken care of Kanta Devi during her lifetime. Mangtu was the owner of the property before Kanta Devi and he had no relations with the plaintiffs. The suit was filed without any basis. Hence, it was prayed that the suit be dismissed.
A separate written statement was filed by defendant no.2, taking preliminary objections rega
