IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA ON THE 13 ^th DAY OF JULY, 2022 BEFORE HON’BLE MR. JUSTICE AJAY MOHAN GOEL REVIEW PETITION No. 23 OF 2021_

Between:-

PRADEEP KUMAR SON OF AMAR NATH, RESIDENT OF VILLAGE & P.O.

JAUNTA, TEHSIL NURPUR, DISTRICT KANGRA, H.P.

……….PETITIONER (BY MR. AJAY SHARMA, SENIOR ADVOCATE WITH MR. ATHARV SHARMA, ADVOCATE)

AND

1. DEV RAJ SON OF MANU RAM, 2. SHYAM SUNDER SON OF DEV RAJ BOTH RESIDENTS OF VILLAGE & P.O. JAUNTA, TEHSIL NURPUR, DISTRICT KANGRA, H.P.

RESPONDENTS/DEFENDANTS

3. MUMESH KUMAR, SON

4. SEEMA DEVI, DAUGHTER

5. SUMAN LATA, DAUGHTER

6. RANJU, DAUGHTER

7. TRIPTA DEVI WIDOW OF LATE SHRI AMAR NATH, 8. SHIV KUMAR (SINCE DECEASED), SON

9. RAVINDER LAL, SON

10. KRISHAN KUMAR, SON OF LATE SHRI RAJ MAL ALL RESIDENTS OF VILLAGE & P.O. JAUNTA, TEHSIL NURPUR, DISTRICT KANGRA, H.P.

.…….PROFORMA RESPONDENTS (BY SHRI RAVINDER SINGH JASWAL, ADVOCATE)

___________________________________________________________

Whether approved for reporting: Yes This petition coming ono for orders this day, the Court passed the following:-

O R D E R

By way of this review petition, the petitioner assails the judgment passed by this Court in RSA No. 114 of 2012, titled as Pardeep KuCmar vs. Dev Raj and others, dated 02.11.2020, on the ground that the judgment is bad as the same was passed ignoring the factum of death of one of the parties before it, i.e. respondent No. 8 and besides this, the contention of the defendants himself as contained in written statement with regard to his right upon the suit land has not been correctly appreciated by the Court.

2. RSA No. 114 of 2012 was filed by Shri Pardeep Kumar, i.e. present petitioner feeling aggrieved by the judgment and decree passed by learned Additional District Judge-(II), Kangra at Dharamshala, District Kangra, in Civil Appeal No. 5-N/2011/16, titled as Shiv Kumar & others Versus Dev Raj & others, dated 22.11.2011. To be more elaborate, it is stated that civil suit was instituted by five plaintiffs, namely, Shri Bisheshar Lal, Amar Nath, Shiv Kumar, Ravinder Lal and Krishan Kumar against the defendants, namely, S/Shri Dev Raj and Shiam SunPder, seeking permanent injunction qua the suit land on the ground that they were owners in possession thereof, whereas the defendants who were strangers, were threatening to forcibly dispossess the plaintiffs and raised construction ovoer the same.

3. The civil suit, i.e. C ivil Suit No. 105 of 1995, was dismissed by the learned rCivil Judge (Jr. Divn.), Court No. 1, Nurpur, District Kangra, H.P. vide judgment and decree dated

30.09.2006.

4. Said judgment and decree was assailed by way of Civil Appeal No. 5-N/2011/06 by three of the plaintiffs, namely, S/Shri Shiv Kumar, Ravinder Lal and Krishan Kumar. As one of the plaintiff, namely, Shri Amar Nath had died during the pendency of the suit itself, his legal representatives, though brought on record, did not prefer any appeal against the judgment and decree passed by learned Trial Court, accordingly, they were impleaded as proforma respondents in the first appeal. The judgment and decree passed by learned Trial Court was upheld by learned first Appellate Court.

5. This judgment was assailed by way of regular second appeal before this Court by Shri Pardeep Kumar, who was a proforma respondent before learned first Appellate Court, in his capacity as one of the legal representatives of deceased Amar Nath. Other persons, who had filed the first appeal, did not cPhallenge the judgment and decree passed by the learned Appellate Court. In these circumstances, all of them were impleaded as proforma respondents in the second appeal, which includes Shri Shiv Kumar, who was impleaded as sucho as respondent No. 8.

6. After the institution of the regular second appeal, notice was issued to all rthe respondents, including proforma respondents. Sh. Shiv Kumar was duly served but he chose not to put in appearance despite service and was proceeded against ex parte.

7. Thereafter, the regular second appeal was decide