Sushil Kumar vs Brij Bala (Deceased) Through Lrs on 6 April, 2026

Himachal Pradesh High Court

Sushil Kumar vs Brij Bala (Deceased) Through Lrs on 6 April, 2026

Author: Sushil Kukreja

Bench: Sushil Kukreja

( 2026:HHC:10247 )

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

FAO No. 261 of 2024
Reserved on: 10.03.2026
Date of decision: 06.04.2026

.

________________________________________________

Sushil Kumar …..Appellant
Versus
Brij Bala (deceased) through LRs ……Respondents

________________________________________________
Coram
The Hon’ble Mr. Justice Sushil Kukreja, Judge.

of
1
Whether approved for reporting? Yes.
________________________________________________
For the appellant: Mr. Bhupinder Gupta, Senior
rt Advocate with Mr. Pranjal
Munjal, Advocate.

For the respondents: Mr. Shrawan Dogra, Senior

Advocate with Mr. Rishi Tandon,
Advocate.

Sushil Kukreja, Judge.

The instant appeal, under Order 43 Rule 1(u) of

the Code of Civil Procedure, has been maintained by

appellant, who was the defendant before the learned Trial

Court, against the order dated 19.04.2024, passed by

learned District Judge, Kangra at Dharamshala in Civil

Appeal No. 155/2022, whereby the case was remanded back

to the learned trial Court for trial afresh after allowing

applications under Order 1 Rule 10, read with Section 151
1
Whether reporters of Local Papers may be allowed to see the judgment?

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CPC and under Order 6 Rule 17, read with Section 151

CPC, with a prayer to set aside the same with costs.

2. The brief facts of the case are that predecessor-

.

in-interest of respondents namely Brij Bala instituted a suit

for possession and recovery of premises marked as

“ABCDEFG” depicted in the site plan, as well as use and

of
occupation charges, wherein, it has been averred that she is

owner of double storeyed building, depicted in the site plan
rt
on having acquired title over the same vide Will dated

15.05.2003 executed by her husband late Sh. Sant Ram

Gupta. The defendant was inducted by her husband as

tenant of the shop marked in the site plan as “FHIJKL” on a

monthly rent of Rs. 3,000/- vide agreement dated

31.12.1998. Behind aforesaid rented portion lies the area

marked as “ABCDEFG”, which was consisting of four rooms,

one big hall and two toilets and was separated from rented

portion “FHIJKL” by erecting a wooden partition. The portion

behind the rented portion depicted as “ABCDEFG” was

never rented out to the defendant, but the defendant by

taking undue advantage of the plaintiff and residing

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permanently at Dharamshala, illegally removed and uprooted

the wooden partition on 01.12.2006 and unauthorizedly

occupied the same. On account of illegal and unauthorized

.

occupation by the defendant of the disputed property, he has

become liable to pay damages to the plaintiff for the same

and occupation of the said area which is assessed to Rs.

of
7,000/- per month. Therefore, total recovery from defendant

by plaintiff from 01.12.2006 till 31.12.2010 is Rs. 3,43,000/-.

rt
The plaintiff is also entitled to recover interest on the said

amount @ 12% per annum from 01.12.2006 till recovery of

the same. A registered legal notice dated 28.12.2010 was

also served upon defendant, but he did not reply. Hence, the

present suit for recovery of the amount for illegal and

unauthorized use and occupation and decree for possession.

3. The defendant contested the suit by filing written

statement, wherein, preliminary objections qua locus standi,

cause of action, estoppel, maintainability, suppression of

material facts, limitation, non-joinder of necessary parties,

valuation and jurisdiction were taken. On merits, it has been

stated that the property in dispute is not in exclusive

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ownership of the plaintiff. The entire property is Gair Mumkin

and is entered in the ownership of Raj Kumar and Rakesh

Kumar, sons of Dharam Chand to the extent of 2/3rd share in

.

equal shares and the plaintiff to the extent of 1/3rd share and

in possession of New Bank of India and Department of

Telephones, as tenants. Therefore, it has been alleged that

of
the Will dated 15.05.2003 does not confer absolute title upon

the plaintiff, as she is a co-sharer to the extent of 1/3rd
rt
share. It has been submitted that there was a civil litigation

pending between other two co-sharers namely Rakesh

Kumar and Raj Kumar qua the suit property, in which, it was

held that plaintiff is only a co-sharer to the extent of 1/3rd

share and in the said litigation Rakesh Kumar and Raj Kumar

were held to be owners to the extent of 2/3rd share in equal

shares. The plaintiff has concealed the factum of previous

litigation and has setup a different claim, as to the judgment

and decree passed in the previous suit. It is claimed that

deceased Sant Kumar Gupta was never exclusive owner of

the disputed property. The defendant is in possession of the

said area under other co-sharers, who were in actual

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possession earlier to defendant. The predecessor-in-interest

of the plaintiff was not sure to hand over the possession of

area marked as “FHIJKL” and apprehended that there could

.

be a dispute with respect to renting out the shop with other

co-sharers, as such, he executed a separate “Ekrarnama”

dated 31.12.1998, wherein, he also agreed to pay interest

of
@2% per month to the defendant in case the possession of

the said area is not taken over by the defendant due to any
rt
reason. Since the deceased was not concerned with the

disputed area, so the question of renting out that area to the

defendant does not arise. The matter with respect to the

disputed area is inter se the defendant and other co-sharers

and the plaintiff has no concern with the same in any

manner. Therefore, it has been submitted that the plaintiff out

of greed and in order to deprive the co-sharers namely

Rakesh Kumar and Raj Kumar, has filed the present suit and

dismissal of the suit is prayed.

4. In replication, allegations leveled in the written

statement have been denied and contents of the plaint are

reiterated.

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5. On 05.11.2015, the learned trial Court had

framed the following issues for consideration and

adjudication:-

.

“1. Whether the husband of plaintiff had
inducted the defendant as a tenant of the
shop vide agreement dated 31.12.1998?
OPP

2. Whether the area behind the rented shop
was not given on rent to the defendant?
OPP

of

3. Whether the plaintiff is entitled for grant of
decree for possession of the ground floor
area, which is in unauthorized possession of
rt the defendant, as alleged? OPP

4. Whether the plaintiff is entitled for grant of
decree for recovery of Rs. 3,43,000/-, as

damages for unauthorized use and
occupation of the area behind the shop, as
prayed for? OPP

5. Whether the plaintiff has no locus standi

and cause of action to file the present suit?
OPD

6. Whether the act, conduct, acquiescence and
silence of plaintiff is a bar to file the suit?

OPD

7. Whether the suit of the plaintiff is not

maintainable? OPD

8. Whether the suit of the plaintiff is not within

time? OPD.

9. Whether the suit of the plaintiff is bad for
non-joinder of necessary and proper
parties? OPD

10. Whether this Court has no jurisdiction to try
and decide the present suit? OPD

11. Relief.”

6. After the parties led evidence and after hearing

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the learned Counsel for the parties, the suit of the plaintiff

was dismissed with costs. Consequently, the plaintiff

preferred an appeal before the learned First Appellate Court

.

and alongwith the appeal filed two applications, one under

Order 1, Rule 10, read with Section 151 CPC for

impleadment and another under Order 6, Rule 17, read with

of
Section 151 CPC for amendment in the plaint, which were

allowed and the case was remanded back to the learned trial
rt
Court to decide the same afresh.

7. Feeling aggrieved and dissatisfied, the

defendant-appellant preferred the instant appeal against the

impugned order dated 19.04.2024.

8. I have heard the learned Senior Counsel for the

appellant, learned Senior Counsel for the respondents and

have carefully examined the entire records.

9. The perusal of the record reveals that the plaintiff

had filed a suit for possession as well as recovery of the

amount on account of illegal occupation by the defendant on

the premises/area, as mentioned in the plaint. In his written

statement, the defendant has taken objection that the suit

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property was owned by the other co-sharers namely Raj

Kumar and Rakesh Kumar also and in the present suit, there

was no mention that the suit for possession and recovery of

.

damages has been filed for the benefit of the aforesaid co-

sharers. The learned trial Court dismissed the suit of the

plaintiff on the ground that suit filed by the plaintiff was bad

of
for non-joinder of necessary parties. The judgment and

decree passed by learned trial Court was challenged before
rt
the learned First Appellate Court, wherein, the plaintiff had

filed two applications,i.e. one under Order 1, Rule 10, read

with Section 151 CPC for impleadment of other co-sharers

namely Raj Kumar S/o late Sh. Dharam Chand, Ms. Aruna

Gupta D/o late Sh. Dharam Chand, Sh. Vikas Gupta and Sh.

Rochan Gupta, Sons of Smt. Ranjana Gupta D/o late Sh.

Dharam Chand and another under Order 6, Rule 17, read

with Section 151 CPC for amendment of the plaint and

learned First Appellate Court allowed both the applications

and the persons mentioned in the application under Order 1,

Rule 10, read with Section 151 CPC were impleaded as

proforma defendants and necessary amendment in

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application under Order 6, Rule 17, read with Section 151

CPC was allowed.

10. Learned Senior Counsel for the appellant/

.

defendant contended that despite objection of the defendant,

the plaintiff had failed to implead necessary parties in the suit

and the suit was rightly dismissed by the learned trial Court

of
on the ground of non-joinder of necessary parties but the

learned First Appellate Court had committed grave error
rt
while allowing the application for impleading other co-

sharers.He further submitted that in the facts and

circumstances of the present case the other co-sharers were

required to be impleaded in the suit being necessary parties

and without them the suit was bad in law. Learned Senior

Counsel further submitted that the matter could not have

been remanded back to the learned Trial Court after

impleading the necessary parties as once the trial court

concluded that all the parties were not arrayed before the

Court, the Court was bound to dismiss the suit for non-

joinder of necessary parties. Learned First Appellate Court

erred in allowing the applications of the plaintiff to implead

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the necessary parties and to allow the amendment of

plaint,therefore, he submitted that the impugned order dated

19.04.2024, whereby the case was remanded back to the

.

learned trial Court for trial afresh after allowing applications

under Order 1 Rule 10, read with Section 151 CPC and

under Order 6 Rule 17, read with Section 151 CPC be set-

of
aside.

11. On the other hand, the learned Senior Counsel
rt
for the respondent/ plaintiff has submitted that the plaintiff

was not required to implead the other co-owners of the suit

property to maintain the suit for possession against the

defendant since the law in this regard is very well settled that

a co-owner can maintain a suit for possession against the

trespasser or a tenant without impleading other co-owners.

He further submitted that the Learned First Appellate Court

had rightly allowed the applications of the plaintiff to implead

the necessary parties and to allow the amendment of plaint,

therefore, he supported the impugned order dated

19.04.2024, whereby the case was remanded back to the

learned trial Court for trial afresh.

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12. After going through the entire material on record,

it is manifest that although, the plaintiff had initially filed a suit

for possession and recovery of damages on account of use

.

and occupation charges of the disputed premises with the

averments that she was exclusive owner of the said

premises. However, it has come on record that there were

of
other co-sharers also, who were having right, title and

interest in the disputed premises. The said fact has not been
rt
disputed by defendant, rather, in the written statement, the

defendant himself averred that two other co-sharers namely

Raj Kumar and Rakesh Kumar were also co-sharers in the

suit property.

13. At this stage, it would be relevant to refer to Order

1, Rule 9 and Order I, Rule 10(2) CPC.

Order I, Rule 9 CPC:

“Mis-joinder and non-joinder.-No suit shall be

defeated by reasons 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 before it:

Provided that nothing in this rule shall apply to non-
joinder of a necessary party.”

Order I, Rule 10(2) CPC :

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“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 by 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.”

of

14. In a case reported as State of Punjab v. Nathu

Ram, AIR 1962 SC 89, while interpreting Order I, Rule 9
rt
CPC before the addition of proviso, it has been held in

paragraph 5 that if the Court can deal with the matter in

controversy so far as regards the rights and interests of the

appellant and the respondents other than the deceased

respondent, it has to proceed with the matter, but if it is not

possible for the Court to deal with the matter in the absence

of a party, it has to refuse to proceed further and dismiss the

matter and such eventuality will occur in the absence of

necessary party. It is made clear that Rule 9 will not apply to

the defect in the suit as of non-joinder of necessary parties

as it cannot proceed in their absence.

15. In an another judgment reported as Ramesh

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Hirachand Kundan Mai v. Municipal Corporation of

Greater Bombay and others, (1992)2 SCC 524, the

Supreme Court while dealing with Order I, Rule 10(2) CPC

.

held that though the plaintiff is dominus litis and he may

choose to implead only those persons as a defendant

against whom he wishes to proceed but under Order I, Rule

of
10(2) the Court may at any stage of the suit direct addition of

necessary or proper parties to enable it effectually and
rt
completely to adjudicate upon and settle all the questions

involved in the suit.

16. Thus from the perusal of the aforesaid judgments,

it is clear that a 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 an objection the plaintiff declines to add

necessary parties, he can not subsequently be allowed in

appeal to rectify the error by applying for amendment.

17. Now, the first question which arises for

consideration is as to whether the suit filed by the plaintiff

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was bad for non-joinder of necessary parties. In so far as the

plea relating to the proposition of law that a suit can be

dismissed for non-joinder of necessary party is concerned,

.

there cannot be any dispute with regard to the same since

Order 1 Rule 9 CPC provides that a suit can be dismissed if

the same is bad for non-joinder of necessary parties however

of
before applying the said provision it has to be scrutinized that

the parties, which are claimed to be the necessary parties,
rt
are actually necessary or not for the adjudication of the

disputes raised between the parties in the present case.

18. The Hon’ble Supreme Court of India in the case

of Aliji Momonji & Co. vs Lalji Mavji & Ors. (1996) 5 SCC

379 has led down the test to ascertain whether a party is a

necessary party to suit or not. The test, whether a party is a

necessary party or not, is twofold i.e. (1) where the presence

of a party is necessary for complete and effectual

adjudication of the disputes, though no relief is sought, he is

a proper party and (2) if in the absence of the said party no

effective and complete adjudication of the dispute could be

made and no relief could be granted then the said party is a

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necessary party.

19. In the backdrop of the above it has to be seen that

whether the suit, as filed by the plaintiff, the other co-sharers

.

were required to be impleaded as necessary parties or not.

20. The law relating to filing of a suit for possession by

the co-owners is well settled by catena of judgments and it

of
has been held time and again that a co-owner can maintain a

suit for possession against the trespasser or a tenant without
rt
impleading other co-owners.

21. The Hon’ble Supreme Court way back in the year

1976 in the case of Shri Ram Pasricha vs. Jaganath

(1976) 4 SCC 184 has observed as under:

“There are two reasons for our not being able to accept
the above submissions. Firstly, the plea pertains to the

domain of the frame of the suit as if the suit is bad for
non-joinder of other plaintiffs. Such a plea should have

been raised, for what it is worth, at the earliest oppor-
tunity. It was not done. Secondly, the relation be-tween
the parties being that of landlord and tenant, only the
landlord could terminate the tenancy and institute the

suit for eviction. The tenant in such a suit is estopped
from questioning the title of the landlord under Section
116 of the Evidence Act. The tenant cannot deny that
the landlord had title to the premises at the
commencement of the tenancy. Under the general law,
in a suit between landlord and tenant the question of
title to the leased property is irrelevant. It is, therefore,
inconceivable to throw out the suit on account of non-
impleadment of co-owners as such.”

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22. The Hon’ble Supreme Court of India in Om

Prakash and Anr vs. Mishri Lal (Dead) represented by

his LR (2017) 5 SCC 451 it has been held that a suit for

.

eviction of a tenant can be maintained by one of the co-

owners and it would be no defence to the tenant to question

the maintainability of the suit on the ground that the other co-

of
owners were not joined as parties to the suit. Further that a

tenant during the continuance of the tenancy is debarred on
rt
the doctrine of estoppel from denying the title of his landlord

through whom he claims tenancy, as is enshrined in Section

116 of the Indian Evidence Act, 1872. The relevant portion of

the aforesaid judgment, reads as under:

“32. It is no longer res-integra and is settled by this
Court in Sri Ram Pasricha vs. Jagannath and Ors.,

(1976) 4 SCC 184, Dhannalal vs. Kalawatibai and Ors.
(2002) 6 SCC and India Umbrella Manufacturing Co.

and Ors. vs. Bhagabandei Agarwalla (dead) by Lrs.
Savitri Agarwalla (Smt.) and Ors. (2004) 3 SCC 178
that a suit for eviction of a tenant can be maintained by
one of the co-owners and it would be no defence to the

tenant to question the maintainability of the suit on the
ground that the other co-owners were not joined as
parties to the suit. The judicially propounded
proposition is that when the property forming the
subject matter of eviction proceedings is owned by
several co-owners, every co-owner owns every part
and every bit of the joint property along with others and
thus it cannot be said that he is only a part owner or a
fractional owner of the property and that he can alone
maintain a suit for eviction of the tenant without joining

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the other co-owners if such other co-owners do not
object. In the contextual facts, not only the compromise
decree, as aforementioned, has declared the
appellants to be the joint owners of the suit premises,
their status as such has not been questioned at any

.

stage by anyone interested in the title thereto.”

34. “That a tenant during the continuance of the
tenancy is debarred on the doctrine of estoppel from
denying the title of his landlord through whom he

claims tenancy, as is enshrined in Section 116 of the
Indian Evidence Act, 1872, is so well- settled a legal
postulation that no decision need be cited to further
consolidate the same. This enunciation, amongst

of
others is reiterated by this Court in S. Thangappan vs.
P. Padmavathu (1999) 7 SCC 474 and Bhogadi
Kannababu and Ors. vs. Vuggina Pydamma and
Others (2006) 5 SCC 53. In any view of the matter, the
rt
appellants, being the son of Bhola Nath, who at all
relevant time, was the landlord vis-a-vis the original
defendant and the respondents in terms of Section 3(j)

of the Act, their status as landlords for the purpose of
eviction under the Act, could not have been questioned
so as to non- suit them for want of locus.”

23. In Prem Kishore and Others Vs. Brahm

Prakash and Others, (2023) 19 SCC 244, the Hon’ble

Supreme Court has held that even otherwise if former suit is

dismissed by the trial Court on the ground of non-joinder or

mis-joinder of parties, the decision, not being on merits

would not be res judicata in a subsequent suit. The relevant

portion of the aforesaid judgment reads as under:-

“34. The general principle of res judicata under
Section 11 of the CPC contain rules of
conclusiveness of judgment, but for res judicata to
apply, the matter directly and substantially in issue in

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the subsequent suit must be the same matter which
was directly and substantially in issue in the former
suit. Further, the suit should have been decided on
merits and the decision should have attained finality.
Where the former suit is dismissed by the trial court

.

for want of jurisdiction, or for default of the plaintiff’s

appearance, or on the ground of non-joinder or mis-
joinder of parties or multifariousness, or on the
ground that the suit was badly framed, or on the
ground of a technical mistake, or for failure on the

part of the plaintiff to produce probate or letter of
administration or succession certificate when the
same is required by law to entitle the plaintiff to a

of
decree, or for failure to furnish security for costs, or
on the ground of improper valuation, or for failure to
pay additional court fee on a plaint which was
undervalued, or for want of cause of action, or on the
rt
ground that it is premature and the dismissal is
confirmed in appeal (if any), the decision, not being
on the merits, would not be res judicata in a

subsequent suit”

24. Thus merely because the other co-owners were not

impleaded as parties to the suit being the co-owners of the

suit property, the suit could not be held to be not

maintainable since it is well settled that as suit for

ejectment/possession may be filed by any of the co-owners

and it is not necessary to join as a party to such a suit and it

is also settled law that there cannot be an estoppel against

the law, therefore, the suit filed by the plaintiff cannot be held

to be bad for non-joinder of necessary parties as a co-owner

can maintain a suit for possession against the trespasser or

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a tenant without impleading other co-owners.

25. Thus in the case on hand, the learned trial Court

had clearly erred in law in holding that the suit is liable to be

.

dismissed for non-joinder of necessary parties, overlooking

the provisions of Order 1, Rule 9 and Order 1, Rule 10 (2)

of the CPC which make it clear that ‘no suit shall be defeated

of
by reason of the misjoinder or non-joinder of parties and that

the Court may at any stage of the proceedings either upon or
rt
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’. Morover the suit could not

have been dismissed on account of non-joinder of necessary

parties since it is settled law that a co-owner can maintain a

suit against the trespasser without impleading other co-

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owners.

26. Examining the situation from another angle, it is

seen that the plaintiff, having suffered the decree of dismissal

.

of suit, filed an appeal and moved the application under

Order 1 Rule 10 CPC before the learned First Appellate

Court. Paras 5 to 8 of the said application are required to be

of
taken note of and the said paras are reproduced below:-

“(5) That in conclusion, the trial court has dismissed
the suit of the applicant/appellant/plaintiff while
rt
holding that the co-sharers Raj Kumar & Rakesh
Kumar are necessary parties and without

impleading them, no effective decree can be
passed in absence of such parties either
defendants or proforma defendants.
(6) That the applicant/appellant/plaintiff is not

claiming the share of Raj Kumar & Rakesh Kumar
and is not disputing the previous judgment Ex. D-1
and admitting the claim of Raj Kumar & Rakesh

Kumar and present suit has also been filed for their
benefits. Rakesh Kumar had died on 17.03.2022 as

issueless, being unmarried and as per the so called
‘Will’, Ms. Aruna Gupta sister, Vikas Gupta &
Rochan Gupta sister’s sons are the legal heirs of

said Rakesh Kumar, who are shown in the heading
of this application as serial No. 2 to 4.
(7) That the present persons are necessary parties
in the present appeal as well as in the original civil
suit in order to enable the court effectually and
completely to adjudicate upon and settle all the
questions involved in the present matter in
controversy. By allowing the present application,

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the respondent/defendant will not suffer any loss
and no prejudice will be caused. The interest of the
present persons who are to be impleaded and
added as proforma defendants in the original civil
suit as well as proforma respondents in the present

.

appeal, is same and they are to be impleaded in
view of the above said facts as well as of the
findings of the trial court, in the interest of justice.

(8) That even the trial court can suo moto implead
the said persons being co-sharers of the suit land &
property as proforma defendants in the civil suit or

of
direct the applicant/appellant/plaintiff to implead the
other co-sharers, i.e. Raj Kumar & Rakesh Kumar,
for adjudicating upon the matter in controversy
between the parties and thereafter, the civil suit has
rt
to be decided and it is for the Hon’ble trial court that
should not go into the technicalities. Procedure is

meant to advance the cause of action, not to
implede it.”

27. A perusal of the aforesaid paras clearly show that

the plaintiff has categorically stated that “even the trial court

can suo moto implead the said persons being co-sharers of

the suit land & property as proforma defendants in the civil

suit or direct the applicant/appellant/plaintiff to implead the

other co-sharers, i.e. Raj Kumar & Rakesh Kumar, for

adjudicating upon the matter in controversy between the

parties and thereafter, the civil suit has to be decided and it

is for the Hon’ble trial court that should not go into the

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technicalities. Procedure is meant to advance the cause of

action, not to implede it.”

28. In the opinion of this Court, even otherwise if the

.

law permits a co-owner to file a suit for possession against

the tenant/unauthorized occupant without impleading the

other co-owners then there cannot be any estoppel against

of
the law and as such the suit filed by the plaintiff without

impleading the other co-owners cannot be held to be bad for
rt
non- joinder of necessary parties. It shall also not be out of

place to mention here that the suit filed by the plaintiff

against the defendant was that for possession and recovery

of damages and by no stretch of imagination it can be said

that without impleading the other co-owners of the suit

property no effective order/adjudication can be done in the

present case and even as per the test laid down in the case

of Aliji Momonji (Supra) for determining as to who is the

necessary party, then it can be safely held that the other co-

owners of a property are not required to be impleaded in a

suit for possession as a necessary party since an effective

order of possession and recovery of damages can be passed

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23 ( 2026:HHC:10247 )

in the absence of such co-owners and at best the other co-

owners could only be a proper party and a suit is not bad for

not impleading proper parties.

.

29. The next contention raised by the learned Senior

Counsel for the appellant is that the learned First Appellate

Court had erred in allowing the application for amendment of

of
plaint without any application of mind and by ignoring the

settled principles of law.

30.
rtThe perusal of the record reveals that since the

application under Order 1, Rule 10, read with Section 151

CPC has been allowed, therefore,the learned first Appellate

Court rightly held that the proposed amendment in the plaint

is necessary for proper adjudication of the dispute between

the parties.

31. In Vasantha (dead) through legal

representative Vs. Rajalakshmi alias Rajam (dead)

through legal representatives, (2024) 5 SCC 282, the

Hon’ble Supreme Court has held that amendment of a plaint

can be permitted at any stage of the suit even at the second

appellate stage. The relevant portion of the aforesaid

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24 ( 2026:HHC:10247 )

judgment reads as under:-

“54. Adverting to the facts of the present case, on a
perusal of the plaint, it is evident that the plaintiff was
aware that the appellant herein was in possession of the

.

suit property and therefore it was incumbent upon him to

seek the relief which follows. Plaintiff himself has stated
that defendant no. 1 was in possession of the subject
property and had sought to transfer possession of the

same to defendant no. 2, thereby establishing that he
himself was not in possession of the subject property. We
are not inclined to accept the submission of the learned

of
counsel for the respondent on this issue. We note that
after the death of the life-estate holder in 2004, there was
no attempt made by the original plaintiff to amend the
plaint to seek the relief of recovery of possession. It is
rt
settled law that amendment of a plaint can be made at
any stage of a suit, even at the second appellate stage.”

32. Therefore, learned First Appellate Court did not

commit any error in allowing both the applications and in

remanding the matter back to the learned trial Court to

decide the suit afresh.

33. Hence, the appeal filed by the appellant being

devoid of any merit is dismissed and the impugned order

dated 19.04.2024 is upheld. Since the suit pertains to the

year 2011, the learned Trial Court is directed to decide the

same as expeditiously as possible and in any event not later

than 31st October 2026.

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25 ( 2026:HHC:10247 )

34. The appeal stands disposed of in the above terms,

so also the pending applications, if any.

.

( Sushil Kukreja )

Judge
6th April, 2026
(raman)

of
rt

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