HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 454 of 1998 Decided on: 13.9.2010 Nirmal Chander (dead) through LRs Swaran Kanta Sood and others. ………Appellants. Versus Jagmohan Sood and others ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellants: Mr.G.C.Gupta, Senior Advocate, with Mr.Pawan Kumar, Advocate. For respondents No.1 to 3: Mr.Ajay Kumar, Advocate. V.K. Ahuja, J.(oral): This is a regular second appeal filed by the appellant under Section 100 of the CPC against the judgment and decree, dated 1.10.1997, passed by the learned District Judge, Shimla, vide which the judgment and decree passed by the learned Sub Judge, Court No.II, Shimla, dated 19.5.1994, was dismissed. 2. Briefly stated, the facts of the case are that the appellant and proforma respondents No.4 to 7, hereinafter after referred to as the plaintiffs, filed a suit for possession by partition of the property as against respondents who were impleaded as defendants No.1 to 3. It was alleged by the plaintiffs that the suit has been filed for possession by way of partition of property known as ______________________________ Whether reporters of local papers may be allowed to see the judgment? Yes. - 2 - shop No.26 and for rendition of accounts of income of the said property from the year 1976 onwards. It was alleged that the property known as Shop No.26, Lower Bazar, is a 3- storeyed building and is situated on Khasra No.194 and was joint property of the father of the plaintiffs, husband of defendants No.1 and 2 and father of defendant No.3. The predecessors-in-interest of the parties died and after their death, their respective shares in the property were inherited by the plaintiffs and the defendants. It was also alleged that the plaintiffs’ share in the suit property is 1/4th. The entire building is in possession of defendant No.1 and a portion of the same is being let out by defendant No.1 to various tenants at different rents. The shop portion of the building was also in possession of defendant No.1 and rent is being received by defendant No.1. 3. It was further alleged that as per the award of the Arbitrator, dated 16.9.1959, a sum of Rs.100/- per month was to be paid to Smt.Amarawati, widow of Lala Karam Chand and the balance amount of the rent received was to be paid to the joint owners. The said Amarawati died in November 1976 and thereafter the entire amount of rent of this property i.e. Shop No.26 is being realized by defendant No.1 alone and no accounts of the same have been rendered to the plaintiffs, hence, this suit for rendition of accounts and for partition. 4. Defendants No.1 and 2 contested the suit. Defendant No.3 did not contest the suit and was proceeded - 3 - against ex parte. Defendants No.1 and 2 took up preliminary objections that the suit was bad for non-joinder of parties, inasmuch as Karam Chand, who had inherited the share of Ajyudhya Dass died leaving behind three daughters. These daughters had not been impleaded as a party. It was admitted that shop No.26 was given on tenancy to the predecessor of defendant No.1 and a counter claim was filed by defendants No.1 and 2 in regard to the accounts of the shop No.27. 5. On the pleadings of the parties, following issues were settled by the learned trial Court: 1. Whether the defendants are accounting party? If so, whether the plaintiff is entitled to the rendition of account of shop No.26? OPP. 2. Whether the property is incapable of partition? OPD 3. Whether the suit is bad for non-joinder of necessary parties? OPD 4. Whether the defendants Nos.1 and 2 are entitled to the counter claim? OPD 5. Whether the counter claim is within limitation? OPD 6. Relief. 6. Parties led their evidence and the learned trial court vide its impugned judgment, decreed the suit partly holding that the plaintiffs are entitled to a preliminary decree for rendition of accounts in regard to Shop No.26 and in regard to the partition, the suit was dismissed. The counter claim of the defendants in regard to shop No.27 was also dismissed. On appeal, these - 4 - findings were set aside by the learned District Judge and the suit of the plaintiffs was dismissed in full. 7. I have heard the learned counsel for the parties and have gone through the record of the case. 8. The main point taken by the learned counsel for the appellant, during the course of arguments, was that his application under Order 41 Rule 27 has been wrongly rejected by the learned First Appellate Court and that has affected the decision on merits of the case also. This was taken as a main point and, therefore, findings have to be given on this plea raised by the learned counsel for the appellant. 9. A perusal of the record shows that an application for additional evidence was filed by the appellants under Order 41 Rule 27 read with Section 151 CPC for producing on record the sale deed of the share of the defendants in shop No.27 as also the mutation of inheritance of Shri Ajudhya Dass, which could not be placed on record by the plaintiffs during the trial in spite of objections taken by the defendants in the written statement. Reply to the application was filed by the defendants. The said application was dismissed by the learned District Judge vide its judgment dated 1.10.1997 while allowing the appeal of the respondent and the findings in regard to this application were given in para 11 under Point No.1. The observations made by the learned District Judge may be reproduced as under: - 5 - “The additional evidence which the plaintiffs want to lead can also not cure this defect because the additional evidence pertains only to the manner of succession and inheritance of the estates of Ajudhaya Dass and Bisheshar Lal Sood. So, the application for additional evidence is dismissed.” 10. It is, therefore, clear that the learned District Judge had not referred to the documents in question. The learned counsel for the appellant had submitted that no reference has been made to these documents nor it was observed as to how they are not relevant for the just decision of the case and it was so, particularly, when the learned trial Court had concluded under Issue No.3 that the suit was bad for non-joinder of necessary parties in so far as the suit relates to the decree for partition. It is not disputed that the parties to the suit had 1/4th share each and after the death of Karam Chand, son of Ajudhya Dass, he had left behind three daughters. It was alleged that after the death of brother of defendant No.3, his legal heirs had to be brought on record and they were not brought on record and only one of the legal heirs of Ajudhya Dass was brought on record. It has come up in the statement of PW-1 Nirmal Chand that Karam Chamd had left behind other heirs, who were all alive but all these legal heirs were not brought on record. 11. The submissions made by the learned counsel for the appellant were that one of the legal - 6 - representatives can contest the suit and he had been brought on the record and it was not necessary that all the legal heirs should be brought on record. I am not convinced of these submissions since it has come up on record that the deceased has left behind other heirs, who were also named in the reply and they are alive but that have not been brought on the record and one of the legal heir cannot represent the whole branch of legal heirs of the deceased. Therefore, the application for additional evidence filed by the appellant deserves to be allowed and the suit could not have been dismissed for want of joining of necessary parties as held by the learned trial Court and as such, the application for additional evidence ought to have been allowed by the learned First Appellate Court and the appeal had to be disposed of according to law thereafter. 12. In view of the above discussion, I accordingly hold that the application for additional evidence filed by the appellant was wrongly dismissed by the learned Appellate Court and the said application is allowed. The plaintiff shall be permitted to prove those documents and thereafter an opportunity shall be given to the other side to rebut the evidence led by the plaintiffs. Thereafter, the appeal shall be disposed of by the learned District Judge afresh according to law. 13. Parties through their counsel are directed to appear before the learned Appellate Court on 8.11.2010. The record of the case, alongwith a copy of this judgment, be sent to the learned Appellate Court, who shall try to - 7 - dispose the case within three months from the date fixed for hearing. The appeal stands allowed accordingly. However, there is no order as to costs. Sept.13, 2010. (V.K. Ahuja), (TILAK) Judge.