LAKHMIR SINGH Vs. KULDEEP SINGH

JUDGEMENT

(1.) The challenge in the present appeal is to the order dtd. 26/5/2022 passed by the lower Appellate Court whereby the matter has been remanded to the Trial Court for deciding afresh on the question of maintainability.

(2.) The brief facts relevant to the present lis are that the plaintiffrespondent No.1 filed a suit for declaration to the effect that he (plaintiffrespondent No.1) and defendant Nos.11 to 13 (respondent Nos.8 to 10 herein) are joint owners in possession to the extent of 1/3rd share in the suit land fully described in the head-note of the plaint. It was averred in the plaint that the plaintiff-respondent No.1 is the son of late Harchand Singh son of Amar Singh and defendant Nos.11 to 13 (respondent Nos.8 to 10 herein) are the widow and daughters of the brother of the plaintiff. The defendant-appellants herein filed their written statement raising the preliminary objection that the suit itself was not maintainable being barred by the principles of res judicata and under Order 2 Rule 2 of the Code of Civil Procedure, 1908 (CPC) amongst others. It is pertinent to note that earlier an application under Order 7 Rule 11 CPC was filed by the defendant-appellants which came to be dismissed. Against the dismissal of the said application Civil Revision No.7854 of 2013 was preferred. Vide order dtd. 3/7/2018, though the revision petition was dismissed, it was directed that the issue regarding maintainability be decided in the first instance. Accordingly, issue No.2 qua maintainability was taken up at the first instance by the Trial Court. The onus of issue No.2 qua maintainability was on the defendant-appellants. The defendant-appellants led their evidence, however, none appeared on behalf of the plaintiff-respondent No.1 to rebut the evidence of the defendant-appellants. Vide judgment and decree dtd. 29/8/2018 the suit of the plaintiff-respondent No.1 was dismissed on merits as being not maintainable. Aggrieved by the said judgment and decree the plaintiff-respondent No.1 preferred an appeal and vide order dtd. 26/5/2022 the case was remanded back to the Trial Court by passing the following order :

(3.) The Lower Appellate Court held that as per the provisions of Order 9 Rule 8 CPC, the suit could have been dismissed for nonprosecution, however, the same could not have been decided on merits in the absence of the plaintiff-respondent No.1.