Leela Widow And Others vs Laik Ram Kashyap And Others

Tarlok Singh Chauhan, J

The instant petition filed under Article 227 of the Constitution of India, lies in a very narrow compass.

The petitioners are the plaintiffs, who filed the suit before the learned Trial Court, wherein they claimed an injunction, which after affording an opportunity of hearing to all the parties, was granted by the learned Trial Court vide its order dated 19.06.2018.

Aggrieved by the order of injunction, two of the defendants i.e. Sh. Laik Ram and Smt. Krishana Devi filed an appeal before the learned Additional District Judge-I, Solan and the same has been allowed, constraining the petitioners to file the instant petition.

Learned counsel for the petitioners would contend that as against twelve (12) defendants only two of the defendants i.e. defendants No. 1 and 2 filed an appeal before the learned first Appellate Court, whereas the remaining defendants i.e. defendants No. 3 to 12 neither filed an appeal nor they have been arrayed as proforma respondents, therefore, the order is required to be set aside and the matter is required to be remitted back to the learned first Appellate Court.

In support of such contention strong reliance is placed by the learned counsel for the petitioners in the judgment rendered by the Hon'ble Supreme Court in Ch. Surat Singh (Dead) and others vs. Manohar Lal and others (1971) 3 SCC 889, more particularly, observations made in para-3, which reads as under:-

“3. As against that decision defendants-respondents went up in appeal to the High Court. During the pendency of the appeal in the High Court Surat Singh died and his legal representatives including Lt. Col. Yadav, his son were brought on record. In the High Court Lt. Col. Yadav was represented by a counsel. The High Court allowed that appeal and dismissed the suit. Civil Appeal No. 610 of 1966 was brought against that decision of the High Court. In this appeal Lt. Col. Yadav has not been made a party The only explanation offered for not making him a party is that the judgment of the High Court did not show clearly that Lt. Col. Yadav was a party to the appeal. The fact that he was impleaded as party in the appeal was undoubtedly within the knowledge of the appellants. That fact is not denied. Further the certified copy of the order of the High Court, produced along with the appeal memo, clearly shows that Lt. Col. Yadav was represented by a counsel. The appellants have not shown any good ground for not impleading Lt. Col. Yadav as a party in the appeal. He is a necessary party to the appeal. Today an application has been filed for impleading him as a party-respondent in the appeal. It is a highly belated application. On their own showing it is clear that the appellant did not act with due diligence. We do not think that we should entertain that application. In the result Civil Appeal No. 610 of 1966 is dismissed for the reasons mentioned above.”

The Coordinate Bench of this Court in Sh. Lachhman vs. Sh. Tulsi (Deceased) through legal representatives & connected matter, 2021 Supp. HLR 2199, particularly in para-2, made the following observations:-

“2. Moreover, with the consent of the counsel appearing for the contesting litigants, this Court, proceeds to only answer, the substantial question of law, as became formulated on 13.8.2021. In determining the tenability of the formulated substantial question of law, the extraction of the description of the memo of parties carried in civil suit No. 80/1 of 95/93, is imperative,and, is, reproduced hereinafter:

“1. Lachhman, 2. Kanshi sons of Sh. Chandu, 3. Anant Ram, 4. Devi Ram, 5. Hari Ram, 6.Prem Lal sons of Shri Baziru

All residents of village Gori, Pargana,Bahadurpur, Tehsil Sadar, District Bilaspur, H.P. Plaintiffs

Versus

Tulsi s/o Sh. Parsa 2. Thakur Dass 3. Sada Ram 4. Dev Raj

Hakim 6. Jaggi } sons of Tulsi All residents of Village Gori, Pargana Bahadurpur, Tehsil Sadar, Distt. Bilaspur, H.P. Defendants”

It is apparent from a reading of the afore extracted description of the memo of parties, of the contesting litigants, as carried in civil suit (supra), that one Hari Ram, was arrayed therein as co-plaintiff No. 5. However, a perusal of the description of the memo of parties, as drawn in Civil Appeal No. 23 of 1996, as became preferred before the learned first appellate Court, by the aggrieved defendants, and, as becomes extracted hereinafter:

“ 1. Shri Tulsi s/o Shri Parsa 2. Thakur Dass, S/o Shri Tulsi 3. Sada Ram/S/o Shri Tulsi 4. Dev Raj S/o Shri Tulsi 5. Hakim S/o Shri Tulsi 6. Jaggi S/o Shri Tulsi Residents of village Gori, Pargna, Bahadurpur, Tehsil Sadar, District Bilaspur, H.P. Appellants Versus 1. Shri Lachhman, S/o Shri Chandu 2. Shri Kanshi S/o Shri Chandu 3. Shri Ganpat S/o Shri Bajira 4. Shri Anant Ram, S/o Shri Bajira 5. Shri Devi Ram, S/o Shri Bajira 6. Shri Prem Lal, S/o Shri Bajira Residents of village Gori, Pargna Bahadurpur, Tehsil Sadar, District Bilaspur, H.P. ..Respondents”

does unfold, that the name of Hari Ram does not occur therein. Consequently, it appears that though Hari Ram is a necessary party in both the Civil appeal, and, in the civil suit, yet his name, did not, occur in the memo of parties drawn in the Civil Appeal, instituted before the learned First Appellate Court. Moreover, despite his being a necessary party, also in the extant regular second appeal, yet his remaining not arrayed as co-plaintiff, thereupon grave prejudice, would become encumbered upon him, if he is alive or if no longer surviving, to his legal representatives. Therefore, this Court, for the afore omission, refrains from deciding the extant lis. Consequently, the lis is remanded to the learned first appellate Court, to, upon an appropriate application, becoming preferred, within three weeks, by the litigant concerned, for ensuring the occurrence of the name of the Hari Ram, if alive, in the array of co-plaintiffs make valid orders thereon, or, in case he is no longer surviving, and, if his demise has occurred, during the pendency of the first appeal, before the learned first appellate Court, to, upon an appropriate application, being filed therebefore, within three weeks, by the litigant concerned, for his being substituted, in the array of respondents, by his LRs, to make an order thereon, in accordance with law. After, the afore corrections are made, within three months hereafter, the learned first appellate Court shall proceed to make, a fresh decision in accordance with law, upon Civil Appeal No. 23 of 1996, within four months thereafter.

Having heard learned counsel for the petitioners,

I am of the considered view that in absence of defendants No. 3 to 12, the appeal itself was not competent before the learned first appellant Court and in any event defendants No. 3 to 12 ought to have been arrayed as appellants or at least as proforma respondents.

Learned counsel for the respondents Shri Abhishek Barowalia, would argue that since only two defendants were before the learned Trial Court, as is evident from the memo of parties accompanying the order dated 19.06.2018, therefore, the appeal was required to be filed only by those defendants who appeared in the memo of parties.

However, I find this contention to be too far to be accepted as defendants No. 3 to 12 have already been arrayed as party defendants after amendment had been allowed by the learned Trial Court. The respondents/defendants No. 1 and 2 cannot be permitted to take advantage of technical error that has crept up in memo of parties that was drawn up by the learned Trial Court in the impugned order before the learned first Appellate Court.

Accordingly, I find sufficient reason to remand this case back to the learned first Appellate Court with a direction to decide the same afresh after hearing the parties and after permitting the respondents to implead defendants No. 3 to 12 as party-respondents. Ordered accordingly.

Parties are directed to appear before the learned Additional District Judge-I, Solan, District Solan on 11.04.2022.

However, before parting, a word of caution to the learned Courts below. It has been noticed that the memo of parties being reflected in various orders impugned before this Court are not correct as per the updated record. The Courts below are directed to ensure that the correct and latest amended memo of parties is readily available so that the same is reflected in the impugned orders/decrees.

Necessary instructions in this regard be circulated by the Registrar General of this Court to all the Courts below.

It is clarified that any observations made herein are solely for the purpose of deciding the present lis and shall not in any way be construed to be an opinion on the merits of the case.