IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. CMPMO No. 351 of 2009 Date of Decision : November 11, 2009 Darvesh Kumar & Ors. …..Petitioners-plaintiffs. vs: State of H.P. & Ors. …Respondents-defendants. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the petitioners: Mr. Ajay Sharma, Advocate. For respondent 1 & 2: Mr. Vivek Thakur, Addl. A.G. Sanjay Karol, J. (Oral). Original plaintiffs No. 4 to 7 have filed the present petition assailing the order dated 16.3.2009 passed by the Civil Judge (Sr. Division), Nurpur, Distt. Kangra, H.P. in CMA No., 76/2009 in Civil Suit No. 154/2000, titled as Asha Rani & Ors. v. State of H.P. and order dated 19.12.2008 passed in the aforesaid civil suit. The plaintiffs filed a suit for declaration to the effect that they are owners in possession of the suit land. On 19.12.2008, none appeared on behalf of plaintiffs No. 1, 2 & 3. Hence, the suit qua them was dismissed. The order is reproduced as under:- 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 “Heard. Notice was issued to plaintiffs No. 1 to 3 for today. None appeared on behalf of plaintiffs No. 1 to 3. Plaintiff No. 1 is duly served in person. Plaintiffs No. 2 and 3 are also duly served through plaintiff No. 1 as they are residing together. Despite service, they did not appear. Case kept waiting till 3.30 p.m. Cause list stands exhausted. Plaintiffs No. 2 and 3 both are major as per birth certificate placed on record. Since plaintiffs No. 1 to 3 did not appear, therefore, suit stands dismissed in default on their behalf. However, suit on behalf of other plaintiffs proceeds further. Now the case to come up for cross-examination of plaintiff Darvesh Kumar and witnesses as affidavits are already placed on record. They be present on 29.12.2008.” Apparently, the said plaintiffs had colluded with the defendants. Consequently, plaintiffs No. 4 to 7 (present petitioners) filed an application under Order 6 Rule 17 read with Order 1 Rule 10 CPC in effect seeking impleadment of the original plaintiffs No.1, 2 & 3 as proforma defendants No. 7, 8 & 9 with an amendment to the effect that the plaintiffs No. 4 to 7 are owners in possession of the suit land along with the said proforma defendants No. 7, 8 & 9. The application was rejected by the Court below on the ground that with the dismissal of the suit, valuable right had accrued in favour of the original contesting defendants. In the present petition, notices were issued to the original plaintiffs No.1 to 3 as also original defendants No. 3 to 6. 3 Inspite of service none has caused appearance on their behalf. Hence, the matter is being heard in their absence. Evidently, on 19.12.2008 itself, the trial Court had dismissed the suit only qua plaintiffs No.1, 2 & 3. The remaining plaintiffs as co-sharers were seeking a declaration of title with respect to the suit property jointly owned by them. With the dismissal of the suit qua plaintiffs No.1, 2 & 3, no interest had actually accrued in favour of the defendants. It is not that the entire suit has been dismissed. The Court below lost sight of the fact that plaintiffs No. 4 to 7 were pursuing the suit in their capacity as co-sharers. Inter se rights of the co-sharers not in dispute, no valuable right would have ever accrued to the defendants. Hence, the Court below erred in rejecting the petitioners’ application. There is also no delay in filing the application. The amendment was necessitated due to changed circumstance. It is bonafide and necessary for complete and proper adjudication of controversy in issue. Hence, the application is allowed. The amended plaint be filed before the trial Court. The appearing parties are directed to appear before the trial Court on 14.12.2009. Record be sent back immediately. The petition is disposed of, so also the pending application. ( Sanjay Karol ), Judge. November 11, 2009. (rana)