The Himachal Pradesh High Court observed that Appellate Court cannot remit the matter to the Trial Court to enable the joining of the necessary parties.

The Single Judge Bench of Justice Rakesh Kainthla noted the following observations made in Ajay Kumar vs. Arya Samaj Dharamshala and others [2002 (1) Shim. LC 426], : "All the objections on the ground of non-joinder of parties must be taken at the earliest but if despite an objection the plaintiff declines to add necessary parties, he can not subsequently be allowed in appeal to rectify the error by applying for amendment."

Senior Advocate N.K. Thakur appeared for the Appellant, whereas Senior Advocate Devyani Sharma appeared for the Respondent.

The brief facts of the case were that the plaintiffs filed a civil suit before the Trial Court 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 sanctioned by the revenue authorities and sale deed executed by first defendant in favour of second defendant 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 the date of her death. Kanta Devi was married to first defendant about 33 years ago, who 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. When the first defendant solemnized his second marriage with Kashmiro Devi, the Plaintiffs and their predecessor-in-interest gave shelter to Kanta Devi and constructed one house for her. Kanta Devi thereafter executed a Will in favour of the plaintiffs in her sound disposing state of mind, and then she died. The revenue authorities sanctioned the mutation in favour of first defendant, who sold the land to second defendant 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.

The Trial Court partly decreed the suit and declared plaintiffs and defendants as owners-in-possession to the extract of 1/8th shares each of the suit land based on natural succession. A consequential relief of permanent prohibitory injunction was also granted. The plea of second defendant that he was a bona-fide purchaser for consideration was also not proved. The Appellate Court also concurred with the Trial Court.

After considering the submission, the Bench referring to a judgment laid down by a five-judge bench in Mussammat Lachhmi v. Mussammat Bhulli [AIR 1927 Lah 289], reiterated that the principle of res-judicata applies to the original proceedings and not to the appellate proceedings.

The Bench noted that the decision in Mussammat Lachhmi has settled that “It must, therefore, be settled at the very outset whether section 11 applies to appeals or whether its operation is limited only to suits meaning proceedings in an action in Courts of the first instance as distinguished from proceedings in appellate Courts. After a careful examination of the section, I have reached the conclusion that it applies to suits only and not to appeals. It is no doubt true that in the body of the Civil Procedure Code as well as in other enactments the word ‘suit’ is often used as including proceedings before an appellate Court, and also other proceedings of a civil nature”.

Further, referring to the judgment of Ajay Kumar, the Bench observed that the First Appellate Court erred in remitting the matter to the Trial Court for enabling the plaintiff to join all the legal heirs of Mangtu as necessary parties.

Accepting the submission that an order of remand is not to be passed lightly since it gives rise to fresh litigation, the Bench referred to the judgment laid down by Gauhati High Court in Lalit Mohan Nath v. Mohan Nath [AIR 1974 Gau 68], wherein it was held that when there is sufficient evidence to enable the Appellate Court to pronounce the judgment, the Court should not remand the matter.

Accordingly, the High Court quashed the judgment passed by Additional District Judge and remitted the matter to the First Appellate Court to decide the matter afresh.

Cause Title: Bidhi Chand and Ors. v. Hardial Singh and Ors.

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