Punjab-Haryana High Court
Gurdial Kaur Since Deceased Through Her ... vs Dhanwant Singh Through His Special ... on 22 April, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:054378
SAO-18-2020 (O&M) 2024:PHHC:054378
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209 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
SAO-18-2020 (O&M)
Date of decision :22.04.2024
Smt. Gurdial Kaur since deceased
through her legal heirs and another ...Appellants
Vs.
Dhanwant Singh through his
Special Attorney and others ...Respondents
CORAM:- HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present: Mr. Kuldep Saini, Advocate for
Mr. A.P. Kaushal, Advocate
for the appellants.
Mr. Baljinder Singh Sra, Advocate
for the Lrs of respondent No.1.
****
ANIL KSHETARPAL, J. (Oral)
1. This second appeal has been filed by the legal
representatives of Smt. Gurdial Kaur and Smt. Subhadra Kumari, who
were defendants No. 6 and 7 before the trial Court against the order
passed by the First Appellate Court while remitting the case back to the
trial Court for fresh decision.
2. The suit filed by Sh. Dhanwant Singh Bola for grant of
decree of declaration was decreed on 21.12.2018. Against the aforesaid
judgment and decree, the appellants filed an appeal, whereas, Sh. Anil
Sharma filed the cross-objections. The First Appellate Court has remitted
the matter back to the trial Court on the ground that all the legal
representatives of defendant No.1-Ram Partap have not been impleaded
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SAO-18-2020 (O&M) 2024:PHHC:054378
as parties.
3. Heard the learned counsel representing the parties at length
and with their able assistance perused the paper-book.
4. On the one hand, the learned counsel representing the
appellants submits that the First Appellate Court has erred in remitting
the matter back to the trial Court. On the other hand, the learned counsel
representing the respondent No.1 (plaintiff) submits that he has no
objection, if the impugned order passed by the First Appellate Court is
set aside.
5. This Court has considered the submissions of the learned
counsel representing the parties.
6. Sh. Ram Partap is stated to be the vendor of the plaintiff. He
was represented by his son and three daughters before the trial Court.
However, before the First Appellate Court, it came to the notice of the
Court that Sh. Ram Partap had left behind three sons and four daughters.
7. In fact, the First Appellate Court has totally overlooked the
fact that estate of Sh. Ram Partap was represented by his sons and
daughters. The legal representatives are brought on record to permit them
to prosecute or defend the suit. Moreover, Sh. Ram Partap has already
sold the property in favour of the plaintiff. Before the First Appellate
Court the legal representatives of Sh. Ram Partap were only the
proforma respondents.
8. Furthermore, the First Appellate Court can remand the case
back to the trial Court only after the requirements laid down under Order
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SAO-18-2020 (O&M) 2024:PHHC:054378
41 Rule 23 and 23-A of the Code of Civil Procedure, 1908 are fulfilled.
In this case, the First Appellate Court has failed to advert to the aforesaid
provisions.
9. Consequently, the impugned order passed by the First
Appellate Court is set aside and the first appeal is restored to its original
number. The parties through their learned counsel are directed to appear
before the First Appellate Court on 24.05.2024.
10. The appeal is disposed of.
(ANIL KSHETARPAL)
22.04.2024 JUDGE
neeraj Whether speaking/reasoned : Yes No
Whether Reportable : Yes No
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