`IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO No. 336 of 2011 Date of Decision: 28.9.2011 Tripti Mittal … Appellant. Versus. Vishal Mittal and others …Respondents. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? Yes. For the Appellant: Mr. Nimish Gupta, Advocate. For the respondent No.1.: Mr. Y.P.Sood, Advocate. For the respondent No.11. Mr. Romesh Verma, Advocate. Deepak Gupta, J. (Oral). 1. This appeal has been filed by original defendant No.5 in the suit and is directed against the judgement of the learned Additional District Judge, Fast Track Court, Chamba dated 31.3.2011 whereby he set-aside the judgement and decree passed by the learned Civil Judge (Jr. Division), Dalhousie dated 26.11.2008 dismissing the suit filed by Shri Vishal Mittal (hereinafter referred to as the plaintiff). 2. Briefly stated the facts are that Vishal Mittal filed a suit against a large number of defendants. Defendants No. 1 to 5, who were termed as the contesting defendants, are 2 the widow, sons and children of late Shri Jatinder Mittal. Defendants No. 6 to 11 were the performa defendants. According to the plaintiff he alongwith proforma defendants was the co-owner of the suit property and that the defendants No. 1 to 5 in connivance with the revenue officials had wrongly got the entire suit property mutated in their favour. Thus it is clear that the interest of performa defendants was identical to that of the plaintiff. During the proceedings of the suit, defendants No. 1 to 5 could not be served in normal process and they were served by publication. They were proceeded against ex- parte. Thereafter, defendant No.5 filed an application praying that the ex-parte proceedings be set-aside. She is the real sister of defendant No.2 to 4 and daughter of defendant No.1. This application was allowed and the suit was contested by defendant No.5 alone. After contest, the suit was dismissed. 3. An appeal was filed by the plaintiff. This appeal has been allowed by the learned lower Appellate Court by the impugned order on two grounds firstly that defendant No.4 was not properly served and hence the decree has to be set-aside and secondly that though an application had been filed for bringing on record LRs of defendant No.7 and that application was allowed but without issuing fresh notice to the LRs the suit had proceeded and thereby the 3 legal representatives of defendant No. 7 had not been properly served. 4. In my view the approach the learned lower Appellate Court is totally erroneous. Neither defendant No.4 Arti Mittal nor Smt. Shakuntla Mittal legal heirs of defendant No.7 were aggrieved by the judgement and decree. They did not challenge the decree. It may be true that Shakuntla Mittal had not been served after she was brought on record but she was definitely served before she was brought on record in the suit. As noted above defendant No.4 is the real sister of defendant No.5. She does not appear to be interested in contesting the suit. Defendant No.5 is not claiming any interest adverse to her siblings or her mother but according to her she alongwith defendants No.1 to 4 is the joint owner of the property. Therefore, as a co-owner she is representing the entire body of co-owners. As far as Shakuntla Mittal is concerned, she was personally served in the appeal also but she has not chosen to contest the suit. 5. It would indeed be a travesty of justice if a plaintiff who does not get the defendants properly served in a suit, gets them served through publication in the newspaper, loses the suit after a contest on merits and then in appeal is permitted to raise a plea that since the defendants have not been properly served the judgement and decree 4 passed against him on merits should be set-aside. In fact, I have gone through the grounds of appeal filed by the plaintiff in the present case and obviously he has not raised any objection that the defendants were not properly served. It would not be open to the plaintiff to take such an objection. 6. Here is a case which proceeded for four years and after contest, rightly or wrongly, the plaintiff loses the suit. In appeal instead of deciding the appeal on merits, the learned lower Appellate Court found a novel way of remanding the case. This Court has repeatedly held that remand should normally be avoided. When neither defendant No.4 nor defendant No.7 were aggrieved by the order whereby they were proceeded against ex-parte, how could the findings given on merits against the plaintiff be set-aside as a whole on the ground that defendants 4 and 7 were wrongly proceeded against ex-parte. Even assuming for the sake of arguments that the plaintiff did not get the defendants properly served, the question that arises is why should the plaintiff or any other party get benefit for its own wrong acts? If the plaintiff did not take adequate steps to serve the defendants personally then in an appeal filed by the plaintiff findings recorded in favour of the defendants cannot be set-aside on the ground that the defendants were not properly served. Therefore, in my 5 opinion, the judgement of the learned Appellate Court to this extent is wholly wrong. It is made clear that this Court has not expressed any opinion on the merits of the case. 7. In view of the above discussion, the case is remanded to the learned lower Appellate Court, who shall decide the same on merits. The parties through their counsel are directed to appear before the learned lower appellate Court on 14th November, 2011 and the learned lower Appellate Court is directed to decide the appeal on merits latest by 31.3.2012 The Registry is directed to send back the records so as to reach well before the next date. No costs. 28th September, 2011 ( Deepak Gupta ) ™ Judge.