HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No.: 218 of 1997. Reserved: 22.5.2008. Decided on: 30.5.2008. Vijay Kumar and others ………Appellants. Versus Rattan Chand and others ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? Yes. For the appellants: Mr.Anuj Nag, Advocate. For respondent No.1: Mr.K.D. Batish, Advocate. V.K. Ahuja, J.: This is a regular second appeal filed by the appellants against the judgment and decree passed by the learned District Judge, Kangra, dated 17.6.1997, vide which he reversed the judgment and decree of the learned Sub Judge, Court No.II, Kangra, dated 26.12.1996, vide which the suit of the appellants/plaintiffs was decreed for declaration and mandatory injunction. Briefly stated the facts of the case are that the appellants as plaintiffs filed a suit for declaration and mandatory injunction as against the respondents who were impleaded as defendants. It was alleged by the plaintiffs that they are owner in possession of the irrigated land as detailed in the plaint measuring 0-38-50 hectares and they have a right of irrigation through a water channel which passes on the middle line of Khasra Nos.1229 and 1230 owned and ___________ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - possessed by the defendants. The plaintiffs alleged that they have been using the kuhal water since long and have a right to use it in future also and defendants cannot object to the user nor they can demolish the water channel existing in the suit land and as the defendants are threatening to demolish the water channel, hence the suit filed by the plaintiffs. Defendant No.2 was proceeded against ex parte. Defendant No.1 contested the suit pleading that no such water channel existed on the boundary line of the suit land and the question of its obstruction and uprooting of channel by them does not arise. The suit was tried by the learned trial Court, which held that there existed a water channel and as the defendants are obstructing and uprooting the said channel, the suit of the plaintiffs was decreed in full. On appeal, the learned First Appellate Court held that in view of the findings on Issue No.2 that the suit is bad for non-joinder of necessary parties, the plaintiffs were not entitled to the relief and the findings of the learned trial Court were set aside and the suit stood dismissed. I have heard the learned counsel for the parties and have gone through the record of the case. The appeal has been admitted on the substantial questions of law which are as to whether the learned District Judge was justified in dismissing the suit of the plaintiffs inspite of the fact that there were no averments made in the written statement as to who were the co-owners and what right they had. The another substantial question of law formulated was as to whether Kanchan Kumar was a necessary party to the suit and whether the learned District Judge was justified - 3 - in dismissing the suit on the ground of non-joinder of necessary parties when he himself rejected the application under Order 1 Rule 10 CPC filed by the said Kanchan Kumar to be arrayed as a party. The facts of the present case are very peculiar since when the suit was filed by the plaintiffs, it was simply pleaded that the suit was bad for non-joinder of necessary parties. It was no where pleaded as to who were the necessary parties or that Kanchan Kumar was also recorded as owner of the land in which the water channel existed. The learned trial Court held under Issue No.5 in regard to whether the suit was bad for non-joinder of necessary parties that it was argued that Khasra No.1229 through which the water channel has been claimed is also owned by Kanchan Kumar, who was necessary party. The learned trial Court observed that defendant No.1 did not mention in his written statement that Kanchan Kumar was a necessary party to the suit and, therefore, the plea of the defendant was vague and cannot be taken into account and, therefore, the said issue was decided in favour of the plaintiffs and against the defendants. This clearly shows that this fact had come to the knowledge of the learned trial Court during the hearing itself that a plea has been taken, though not specifically but during the course of arguments, that the said Khasra number was also owned by Kanchan Kumar who was, therefore, necessary party to the suit. A perusal of the record also shows that Kanchan Kumar was recorded as co-owner of the Khasra number in which the water channel existed. The said Kanchan Kumar during proceedings pending before the learned District Judge filed an application to be impleaded as a party alleging that he was - 4 - serving outside and he has learnt that a case was going on and since he is a share holder in the suit land, therefore, he is a necessary party. The said application is dated 19.4.1997 and the learned First Appellate Court observed on 26.5.1997 that the arguments in this appeal shall be heard after the decision on the application, which is fixed for reply on 17.6.1997. On 17.6.1997, the said application was dismissed by a separate order and the main file shows that the arguments were heard and the appeal was allowed on 17.6.1997 itself. Thus, both these orders were passed by the learned First Appellate Court on the same date. It is surprising that the learned First Appellate Court rejected the application filed by the said Kanchan Kumar and on the same date held that the suit was bad for non-joinder of necessary parties since the said Kanchan Kumar recorded as co-owner was not impleaded as a party. Once the First Appellate Court had dismissed the application filed by the said Kanchan Kumar to be impleaded as a party, it should not have dismissed the suit on the ground of non-joinder of necessary parties since the said party had approached the court for being impleaded as party, though the plaintiffs had not filed the application to implead the said Kanchan Kumar as a party nor impleaded him a party when the suit was filed. However, the law is clear that once the court comes to the conclusion that the suit is bad for non-joinder of necessary parties, the suit cannot be dismissed and an opportunity has to be given to the learned trial Court to implead the said party as a party to the suit and proceed with the trial of the - 5 - case according to law. The suit cannot be dismissed on the grounds of non- impleading of necessary parties. To substantiate his point that the suit could not have been dismissed, the learned counsel for the appellants had relied upon the decision in Ksh.Achouba Singh and others v. L.Achouba Singh and others, AIR 1984 Gauhati 39, which shows that allottees of other lands were not necessary parties and if they were, reasonable opportunity should be given to the petitioner to add them. Even civil court cannot dismiss the suit for non-joinder of necessary parties without affording reasonable opportunity to plaintiff. On the other hand, the leaned counsel for the respondent had submitted that once the said party, namely, Kanchan Kumar had not been impleaded as a party, neither the suit could have been dismissed on that ground nor time can be granted to implead him as a party. Once he was not a party to the suit, the said findings will not be binding upon him, which are binding upon the parties to the suit only. In support of his submissions, the learned counsel had relied upon the decision in Shyampati v. Munshi Ram and others, 2002(1) Shim.L.C. 328. A perusal of this decision shows that it was held by a Division Bench of this Court that the District Judge was not right in setting aside the decree and judgment of the trial Court on merit to give an opportunity to the plaintiff to add necessary parties when he had failed to do so despite the preliminary objection of non- joinder of necessary parties by the defendants in their written statement. It was further observed that even after the findings of the trial Court that the suit was bad for non-joinder of legal representatives of two co-owners of the suit land, - 6 - the plaintiff did not show his willingness to implead them in his appeal before the District Judge and insisted that the findings of the trial court were erroneous. It was observed that the District Judge has not exercised this power under Order 1 Rule 10(2) CPC as he has not directed the plaintiff to add the necessary party. His direction was limited to give an opportunity to add necessary parties, which he may avail or may not avail. The above decision is distinguishable from the present facts because in that case the findings of the trial court were that the suit was bad for non- joinder of necessary parties and the plaintiff did not show his willingness to implead them in his appeal and rather pleaded that the findings of the trial Court were erroneous, whereas in the present case, the learned trial Court had held that the suit was not bad for non-joinder of necessary parties. However, the learned District Judge, in the present case, had not given any direction to the plaintiff to add the necessary parties or give opportunity to the plaintiff to add necessary party, which opportunity he may avail or may not avail. Once the learned District Judge had come to the conclusion that the suit was bad for non- joinder of necessary parties and had reversed the findings of the learned trial Court, he could not have dismissed the suit and rather he was bound to give an opportunity to the plaintiff to implead the said party as defendant, who had filed an application also before the learned District Judge to be impleaded as a party which application surprisingly was also rejected on the same date. The suit was not for injunction simplicitor in which it could have been filed against a party interfering in the rights of the plaintiff but once the suit was for declaration also, the rights of the person recorded in the revenue record as co-owner were likely - 7 - to be affected and, therefore, he had to be given an opportunity to defend his case. It may be that the other defendant may have connived with the plaintiff and accordingly got the suit decreed in the absence of said Kanchan Kumar, who was never impleaded as party though he was duly recorded in the revenue record as one of the co-owner. The facts of the present case are, therefore, distinguishable from the above judgment and the mere fact that the case is an old one or it will take time to dispose of the case cannot be a ground to upheld the judgment of the learned District Judge, which, prima facie, was wrong since he did not give any findings on the merits but dismissed the suit on the ground of non-joinder of necessary parties, for which an opportunity has to be given to the learned trial Court to implead said Kanchan Kumar as party and then proceed with the case in accordance with law. In view of the above discussion, the appeal filed by the appellants is allowed and the judgment and decree passed by the learned First Appellate Court is set aside. The parties shall appear before the learned trial Court on 1st July, 2008, who shall proceed with the case as per the observations made above. The learned trial Court shall give short dates and shall try to dispose the case as far as possible by 30th September, 2008. Copy of the judgment alongwith the record of the case be returned to the concerned courts. May 30, 2008. (V.K. Ahuja), (TILAK) Judge.