IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CMPMO No. 181 of 2011. Date of Decision: 20.7.2011. Sh. Chuni Lal & Ors. …Petitioners. Versus. Sh. Ram Sain …Respondent. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? No. For the Petitioners: Mrs. Devyani Sharma, Advocate. For the Respondent: Mr. Dheeraj Vashisht, Advocate vice Mr. Ajay Kumar, Advocate. Deepak Gupta, J.(Oral). 1. By means of this petition, the petitioners have laid challenge to the order dated 20.4.2011 whereby the application filed by them under Order 1 Rule 10 read with Order 6 Rule 17 CPC has been rejected. 2. Briefly stated, the facts of the case are that Shri Hari Dass predecessor-in-interest of the present petitioners had filed a suit against respondent-Ram Sain claiming that he (the plaintiff) is one of the co-owner/co-sharer in the suit land, but late Shri Jagti Ram, father of Ram Sain had wrongly been shown in possession of the same. 2 3. According to the petitioners, respondent-Ram Sain had no right over the suit land and, therefore, it was prayed that a decree for possession and perpetual injunction be passed in favour of the plaintiff and against the defendant. 4. Respondent-Ram Sain in his written statement took a preliminary objection that the property in question belonged to his late father Shri Jagti Ram and after the death of his father, the same had been inherited by his legal heirs Hira Lal, Ram Sain and Smt. Nain Kali. It was claimed that Jagti Ram was owner in possession of the land in question. A specific preliminary objection was raised that the suit was not maintainable without the other legal heirs, namely Hira Lal and Smt. Nain Kali being impleaded as defendants. 5. It appears that issues were framed and the plaintiffs led evidence and after the plaintiff’s evidence, this application was filed by the plaintiffs. Though the application is under Order 1 Rule 10 read with Order 6 Rule 17 CPC, a perusal of the record clearly shows that the plaintiffs sought to implead Sh. Hira Lal and Smt. Nain Kali as defendants No.2 and 3 as party defendants and 3 consequential relief in the plaint and relief clause was that decree be passed against the defendants. 6. The learned trial Court rejected the application on the ground that the same is highly belated. The learned trial Court lost sight of the fact that no suit should ordinarily be dismissed for non joinder of parties without giving an opportunity of being heard to the parties. It is the plaintiffs who have sought impleadment of two new defendants on the objections being raised by the main defendant itself. There are, however, ways and means of ensuring that there is no undue delay in the trial. 7. Ms. Devyani Sharma, learned counsel for the petitioners submits that no new evidence is required to be led. The only disputed question is, whether it is the plaintiffs or the defendants, who are owner in possession of the suit land. The plaintiffs have already led evidence. No new evidence in affirmative has to be led by the plaintiffs, in case the defendants are added as party defendants. The newly added defendants can file a written statement and it may or may not be necessary for the plaintiffs to lead any fresh evidence. In all probability fresh evidence may not be required and if the defendants lead evidence and there are issues on which the plaintiffs can lead rebuttal 4 evidence, it will always be open for them to do so in accordance with law. However, the application for bringing on record parties, who are the necessary parties, could not have been rejected only on the ground of delay. 8. Therefore, the present petition is allowed and the order of the learned trial Court is set aside and the application is allowed to the extent that defendants Hira Lal and Smt. Nain Kali may be arrayed as defendants No.2 and 3 in the plaint and only consequential amendment in the plaint, to the cause title and in the prayer clause will be made. Amended plaint if not already filed be filed on or before the date fixed before the learned trial Court. The parties through their learned counsel are directed to appear before the learned trial Court on 25th August, 2011. No costs. (Deepak Gupta), Judge 20th July, 2011. (Krn Guleria)