IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No. 494 of 2010 Date of decision: 11.10.2011 Gurnam Singh & Ors. ..Appellants. Versus Achhar Singh & Ors. …Respondents. Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting? No For the appellants: Mr. N.K. Thakur, Advocate. For the respondents: Mr. H.K. Bhardwaj, Advocate, for the respondents. _____________________________________________________ Deepak Gupta, J(oral). 1. By means of this appeal, the appellants(hereinafter referred to as the defendants) have challenged the judgment dated 6.10.2010 passed by the learned District Judge, Una whereby he allowed the appeal filed by plaintiffs and set aside the judgment and decree of the learned trial Court and remanded the case to the trial Court for decision afresh. 2. The undisputed facts are that Mehar Chand and Dalipa, who were joint owners of the suit land, mortgaged the same in the year 1954 for a sum of Rs.1,290/- with Wattna and Sansara. It is also not 2 disputed that thereafter the same land was again mortgaged vide registered mortgage deed dated 13.6.1968 in favour of Wattna and Nikku. The case of the plaintiffs, who are the successors-in-interest of the original mortgagors, is that the previous mortgage was extinguished after coming into force of the second mortgage. 3. On the other hand the case of the defendants, who are the successors-in-interest of the mortgagee, is that the share of Sansara was never redeemed and the mortgage qua his share was not extinguished and therefore, Sansara became owner of the said land and hence was a necessary party to the suit. The learned trial Court came to the conclusion that Sansara was a necessary party to the suit and also held that the suit was not within limitation and hence dismissed the suit. 4. It would be pertinent to mention that in the original plaint it was stated that the mortgage had been created in the year 1957 for a sum of Rs.1,240/-, but the stand of the defendants was that the mortgage was created on 7.6.1954, but the amount is not clearly stated. An application was filed for amendment of the suit wherein the date was sought to be changed from 1957 to 7.6.1954 and the amount was sought to be changed from Rs.1240/- to 3 Rs.1290/-, but this application was rejected by the learned trial court. 5. The learned lower appellate Court came to the conclusion that once the trial Court had held that Sansara was a necessary party to the proceedings, he should have added him as a party and therefore, allowed the application under Order 1 Rule 10 CPC filed by the defendants at the stage of arguments in appeal. He also set aside the order of the learned trial Court, rejecting the amendment and on these two grounds remanded the case to the learned trial Court for decision afresh. 6. As far as the application for amendment is concerned, I am of the considered opinion that the learned lower appellate Court was justified in setting aside the order of the learned trial Court since the amendment was in consonance to what was stated by the defendants in their written statement. This amendment did not in any way change the nature of the suit land and only the correction of the year from 1957 to 1954, if at all, would help the defendants and not the plaintiffs. However, even if such amendment is allowed this did not require framing of fresh issues nor did it require any further evidence to be led. There was, therefore, no question of the matter being remanded on this ground. 4 7. The second ground which weighed with the learned lower appellate Court that the heirs of Sansara should have been added as party in the suit. The suit was filed on 2nd January, 1998 and the written statement was filed on 17.11.1999. In the written statement a specific preliminary objection No.1 was raised that the suit is bad for non-joinder of necessary party i.e. Sansara son of Haria. Therefore, a specific objection had been taken that Sansara was a necessary party to the suit. The learned trial Court held that he was necessary party and dismissed the suit. 8. In Shyampati vs. Munshi Ram and others, 2002(1) Shim.L.C. 328 a learned Division Bench of this Court after analyzing the entire law on the aspect and after making reference to a number of judgments held as follows:- “20. After perusing the judgements of Supreme Court and various High Courts there remains no doubt that the general rule is that suit cannot be dismissed on the ground of non-joinder of proper parties but this rule does not apply in case of non-joinder of necessary parties. All the objections on the ground of non-joinder of parties must be taken at the earliest but if despite said objection the plaintiff declines to add necessary parties, he cannot subsequently be allowed in appeal to rectify the error by applying for amendment. 5 21. So far the proviso of Order 1 Rule 10(1) and (2) is concerned, it is to help the honest plaintiff who by committing bona fide mistake has not added the necessary parties and who is ready and willing to amend his suit as and when the defect is pointed out. Though the Court has a wide discretion in the matter of joinder of necessary or proper party, it must be exercised in a reasonable manner so as not to cause inconvenience or embarrassment to the plaintiff who is the dominus litis and in exceptional cases where the Court is satisfied that the presence of a particular person is absolutely necessary to effectively and completely adjudicate upon and settle all the points involved in the suit, it can implead that party as a defendant notwithstanding the objection of the plaintiff. But this power should be exercised so as not to introduce a new cause of action or alter the nature of the suit. It should be exercised at the stage of trial and avoided to be exercised at the appeal stage, more so, if despite objections at the earliest the plaintiff fails to implead the necessary parties.” 9. Order 1 Rule 9 and 1 Rule 10 of the CPC reads as follows:- “Order 1 Rule 9: Mis-joinder and non-joinder:- No suit shall be defeated by reason of the mis-joinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interest of the parties actually before it: [Provided that nothing in this rule shall apply to non-joinder of a necessary party] 6 Order 1 Rule 10: Suit in name of wrong plaintiff: (1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just. (2) Court may strike out or add parties.— The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name, of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. (3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent. (4) Where defendant added, plaint to be amended— Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the 7 summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant. (5) Subject to the provisions of the Indian Limitation Act, 1877 (15 of 1877), section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons.” 10. In terms of Order 1 Rule 9 CPC and under Order 1 Rule 10 CPC a suit cannot be dismissed on the ground of non-joinder of proper parties. However, if the parties are necessary parties then the suit has to be dismissed. The law is also clear that objection with regard to the non-joinder of necessary parties has to be taken at the earliest stage and if despite the said objection the plaintiff declines to take steps to implead the necessary parties he cannot subsequently be allowed in appeal to rectify the error. 11. It would indeed be a travesty of justice, if a plaintiff who despite a specific objection being raised that certain parties are necessary parties continues with the suit and takes no steps to implead the necessary parties, is permitted at the final stage or at the appellate stage be permitted to implead the said parties which would require de novo trial of the suit the parties which were not been joined are necessary parties then the plaintiff cannot after many years of trial claim that the suit cannot be dismissed. If any 8 party takes the risk of proceeding with the suit without impleading the necessary parties despite specific objection having been raised at the earliest stage, he cannot later on, especially at the appellate stage, claim that now he should be permitted to add those parties. 12. In the present case, the suit of the plaintiff was dismissed both on the merits and on the ground of non-joinder of parties. By permitting the plaintiff to add parties at the appellate stage and by remanding the suit as a whole the learned lower appellate court has virtually set-aside the findings given on merits also. Why should the plaintiff or any party benefit for its own wrong acts and why should the defendant suffer in case the plaintiff despite objection having been raised takes no steps to implead the necessary parties. Therefore, in my opinion, the judgement of the learned lower Appellate Court to this extent is totally wrong. 13. Shri H.K. Bhardwaj, learned counsel for the plaintiffs urges that the suit is in fact not bad for non-joinder of parties since by the second mortgage the rights of Sansara stood extinguished. This Court is not expressing any opinion on this aspect of the matter. It is for the learned lower Appellate Court to decide whether Sansara was a necessary party or 9 not. However, in view of above discussion, the heirs of Sansara could not have been impleaded as party at the appellate stage and there was no reason to remand the suit. 14. Therefore, the judgment of the learned lower appellate court is set aside and the matter is remanded to the learned lower appellate Court to decide the same on merits. It is made clear that this Court has not decided whether Sansara was a necessary party to the suit or not. The parties through their counsel are directed to appear before the learned lower Appellate Court on 15th November, 2011 and the lower Appellate Court shall make an endeavour to dispose of the appeal at the earliest and in any event not later than 28th February, 2012. The Registry shall return the records of the courts below so as to reach well before the next date. No costs. October 11, 2011 (Deepak Gupta) (vt) Judge