A PAVANSAY Vs. A SUNDAR

JUDGEMENT

(1.) This second appeal was admitted for hearing on the following substantial question of law: -

(2.) The suit filed by the original plaintiffs Ghopsai, Sadhu and Bhungi against Jangli and one another was dismissed ex parte on 15-7-1994. During the pendency of the suit, defendant No.1 Jangli died and his legal representatives were brought on record by order dated 22-2- 1992. Against the dismissal of suit, the plaintiffs preferred appeal before the first appellate Court and also filed application under Order 1 Rule 10 of the CPC stating inter alia that the grand-sons of Jangli may be allowed to be impleaded, as they were necessary party in the suit, which was rejected by the first appellate Court on 28-11-2002 and subsequently, on 13-12-2002 the appeal itself was also dismissed holding that grand-sons of Jangli were necessary party and for want of necessary party, the appeal cannot be heard on merits against which this second appeal has been preferred and substantial question of law has been framed which has been set-out in the opening paragraph of this judgment.

(3.) Learned counsel for the appellants / plaintiffs would submit that the first appellate Court is absolutely unjustified in dismissing the appeal holding it to be not maintainable merely on the ground that one of the legal representatives were not brought on record, as other legal representatives were already on record and further the first appellate Court ought to have exercised the power conferred under Order 22 Rule 4 of the CPC, therefore, the impugned order is liable to be set aside.