Bombay High Court

BHAULAL RAMDAS PATIL (BARI) AND ORSversusMATHURABAI BHASKAR BARI THR HER POWER OF ATTORNEY HOLDER GOPAL BHASKAR BARI

Disposal: DISMISSED
Bench: SHAILESH P BRAHME

Holding

The appellate court should have decided the suit on its merits and the order of remand was unwarranted.

Summary

The appellants, original defendants in a partition suit (Regular Civil Suit No.113 of 2012), challenged the appellate court's order remanding the case for impleading necessary parties and including a left‑out ancestral property. The trial court had dismissed the suit for non‑joinder of necessary parties and failure to bring all properties into a common hotchpot. On appeal, the lower appellate court remanded the matter without finding any application by the parties to join missing parties or to include the omitted property, invoking its suo motu powers. The High Court held that the remand was unwarranted because neither party sought such relief and the appellate court could have decided the matter on merits under Order 41 CPC. Citing Supreme Court precedents, the Court emphasized that non‑joinder of necessary parties is fatal unless remedied at the trial stage, and that appellate courts may only remand when material is lacking. Consequently, the appeal was allowed, the impugned order quashed, and the appellate court directed to decide the case on its merits.

Issues considered

Whether the First Appellate Court was justified in remanding the matter without considering the non‑joinder of necessary parties and omission of ancestral property.
Whether the remand order violated the provisions of Order XLI Rules 23, 23‑A and 25 of the CPC.

Legislation cited

Code of Civil Procedure, 1908 — s. Order 1 Rule 10, Order 1 Rule 9, Order 41 Rule 24, Order 41 Rule 33, Order XLI Rule 23, Order XLI Rule 23-A, Order XLI Rule 25
Hindu Succession Act, 1956 — s. Section 12
Specific Relief Act, 1963 — s. Rule 23-A

Subjects

partition suit
non‑joinder of necessary parties
remand order
appellate jurisdiction
Civil Procedure Code
Specific Relief Act
common hotchpot
civil procedure

Judgment

2026:BHC-AUG:5165

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

APPEAL FROM ORDER NO. 14 OF 2023
WITH
CIVIL APPLICATION NO. 2263 OF 2023
IN AO/14/2023

BHAULAL RAMDAS PATIL (BARI) AND OTHERS
VERSUS
MATHURABAI BHASKAR BARI THR HER POWER OF
ATTORNEY HOLDER GOPAL BHASKAR BARI AND OTHERS

...
Advocate for Appellants : Mr. Girish S. Rane.
Advocate for Respondents : Mr. Bolkar Yogesh B.
...

CORAM : SHAILESH P. BRAHME, J.

RESERVED ON : 30.01.2026
PRONOUNCED ON : 06.02.2026

FINAL ORDER :

1. Taken up for final disposal with consent of the parties.

2. The appellants who are original defendants are

questioning order of remand passed by Appellate Court in

Regular Civil Appeal No.19 of 2017 for not impleading

necessary parties to the suit and for not bringing all properties

in common hotchpot.

3. Respondent is the original plaintiff who had filed
2 AO.14-2023+1.odt

Regular Civil Suit No.113 of 2012 for partition and possession.

A genealogy which is at running page No.12 of the paper book

has not been disputed. Parties are stated to be members of

undivided joint family. The grievance of the plaintiff is that his

father Latakan has a share in the property on partition who is

excluded.

4. Appellants/defendants contested suit on various counts.

A specific plea has been raised regarding non-joinder of

necessary parties and for not including Survey No.186/2 in the

subject matter which is stated to have been allotted by Tanu

Nago Bari to plaintiff’s father Latakan. The said land is stated

to have been further alienated to the third person on

06.09.1961. It is further pleaded that plaintiff and his father

relinquished their share by mutation entries.

5. Both parties adduced oral and documentary evidence.

Trial Court dismissed the suit vide judgment dated 11.04.2017.

Being aggrieved Regular Civil Appeal No.19 of 2017 was

preferred by the respondent/plaintiff. By impugned order,

matter is remanded to the Trial Court to extend opportunity to

parties.
3 AO.14-2023+1.odt

6. Learned counsel for the appellants Mr. Girish Rane

submits that order of remand is casual and patently illegal. It

is further submitted that the respondents did not file any

application before Lower Appellate Court either seeking

addition of parties or bringing left out properties in common

hotchpot. It is submitted that the Lower Appellate Court has

ample power under Order 41 Rule 24 and 33 of Civil

Procedure Code to decide the matter on merits.

7. The submissions of the appellants are repelled by

learned counsel Mr. Bolkar. It is submitted that Appellate Court

is justified in remanding the matter so as to extend opportunity

to both sides. It is submitted that even the Appellate Court has

suo motu powers directing to implead the necessary party. It is

submitted that the purport of order of remand is to have

effective adjudication of the controversy.

8. Both learned counsels advanced their submissions in

pursuance of substantial questions of law framed by this Court

which are as follows :

i) Whether the learned First Appellate Court is justified in
allowing the appeal and remanding the matter without
considering the aspect that the suit was dismissed on the
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ground of non maintainability of the suit on account of non
joinder of necessary parties and bringing all ancestral
properties in the suit ?

ii) Whether the learned First Appellate Court is justified in
passing the order of remand de-hors the provisions of Rule
23, 23-A and 25 of Order XLI of the C. P. C. and also when at
nowhere the findings of the Trial Court are discussed,
considered and held to be perverse or bad in law ?

9. In written statement, specific defence was taken

regarding non-joinder of necessary parties and not bringing all

the ancestral properties in common hotchpot. In pursuance of

that Trial Court formulated issue Nos.3 and 4. The findings are

recorded against the plaintiff for those issues which are evident

from judgment of the Trial Court.

10. Respondents/plaintiffs was aware of the specific pleas

raised by the appellants in written statement. Even issues to

that effect are also framed, but no endeavour has been made

by her to implead the necessary parties or to bring Survey

No.186/2 in common hotchpot. No steps are taken to even

implead the purchasers. In Appellate Court also no remedial

measures are taken by the respondent/plaintiff. On the

contrary, grounds of objection Nos.9 and 10 of the appeal
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memo indicate that findings recorded to issue Nos.3 and 4 of

the Trial Court are challenged.

11. Neither of the parties made any application to implead

any person as a necessary party nor is there any submission by

them that the evidence on record is inadequate to decide the

controversy. It is not case that either of the parties is denied

opportunity to lead evidence. In such situation, the order of

remand is absolutely unwarranted. The reasons for remand are

unsustainable.

12. The Appellate Court is deciding claim for partition and

separate possession. The repercussions for not impleading

necessary parties or not bringing all the properties in common

hotchpot is settled by law. It could have exercised the

jurisdiction under Order 41 Rule 24 and 33 of CPC. No case is

made out that for effective adjudication of the controversy, the

matter is required to be remitted to the Trial Court.

13. Learned counsel Mr. Bolkar has adverted my attention

to Order 1 Rule 10 of CPC to buttress that the suit shall not be

defeated by non-joinder of necessary parties. The powers of

the Court provided by Rule 10 have also been pressed into
6 AO.14-2023+1.odt

service. In the present case, none of the parties wanted to

implead any person as a necessary party or to bring in common

hotchpot a left out common ancestral property. In such a case,

the Appellate Court should have decided the matters on merits.

14. Learned counsel Mr. Rane has relied on the judgment of

five Judges Bench of the Supreme Court in

Kanakarathanammal Vs. V. S. Loganatha Mudaliar and

another; AIR 1965 Supreme Court 271 . It is apposite to refer

following extract :

“14. We do not think there is any justification for allowing
the appellant to amend her plaint by adding her brothers at
this late stage. We have already noticed that the plea of non-
joinder had been expressly taken by respondents 1 and 2 in
the trial Court and a clear and specific issue had been
framed in respect of this contention. While the suit was
being tried, the appellant might have applied to the trial
Court to add her brothers, but no such application was
made. Even after the suit was dismissed by the trial Court on
this ground, it does not appear that the appellant moved the
High Court and prayed that she should be allowed to join
her brothers even at the appellate stage, and so, the High
Court had no occasion to consider the said point. The fact
that the High Court came to the contrary conclusion, on the
question of title does not matter, because if the appellant
wanted to cure the infirmity in her plaint, she should have
presented an application in that behalf at the hearing of the
7 AO.14-2023+1.odt

appeal itself. In fact, no such application was made even to
this Court until the appeal was allowed to stand over after it
was heard. Under the circumstances, we do not think it
would be possible for us to entertain the said application. In
the result, the application for amendment is rejected.

15. It is unfortunate that the appellant's claim has to be
rejected on the ground that she failed to implead her two,
brothers to her suit, though on the merits we have found
that the property claimed by her in her present suit
belonged to her mother and she is one of the three heirs on
whom the said property devolves by succession under s. 12
of the Act. That, in fact, is the conclusion which the trial
Court had reached and yet no action was taken by the
appellant to bring the necessary parties on the record. It is
true that under 0. 1 R. 9 of the Code of Civil Procedure no
suit shall be defeated by reason of the misjoinder or non-
joinder of parties; but there can be no doubt that if the
parties who are not joined are not only proper but also
necessary parties to it, the infirmity in the suit is bound to
be fatal. Even in such cases, the Court can under 0. 1 R. 10,
sub-rule 2 direct the necessary parties to be joined, but all
this can and should be done at the stage of trial and that too
without prejudice to the said parties' plea of limitation. Once
it is held that the appellant's two brothers are co-heirs with
her in respect of the properties left intestate by their mother,
the present suit filed by the appellant partakes of the
character of a suit for partition, and in such a suit clearly the
appellant alone would not be entitled to claim any relief
against the respondents. The estate can be represented only
when all the three heirs are before the Court. If the
appellant persisted in proceeding with the suit on the basis
8 AO.14-2023+1.odt

that she was exclusively entitled to the suit property, she
took the risk and it is now too late to allow her to rectify the
mistake. In Naba Kumar Hazra & Anr. v. Radheshyam
Mahish & Ors. AIR 1931 PC 229, the Privy Council had to
deal with a similar situation, In the suit from which that
appeal arose, the plaintiff had failed to implead co-
mortgagors and persisted in not joining them despite the
pleas taken by the defendants that the co-mortgagors were
necessary parties and in the end it was urged on his behalf
that the said co-mortgagors should be allowed to be
impleaded before the Privy Council. In support of this plea,
reliance was placed on the provisions of O. 1 R. 9 of the
Code. In rejecting the said prayer, Sir George Lowndes, who
spoke for the Board observed that "they are unable to hold
that the said Rule has any application to an appeal before
the Board in a case where the defect has been brought to the
notice of the party concerned from the very outset of the
proceedings and he has had ample opportunity of
remedying it in India."

The above principles are still intact and aptly applied to

the present case.

15. Further reliance is placed on the judgment of

Kenchegowda (since Deceased) by Legal Representatives Vs.

Siddegowda @ Motegowda ; (1994) 4 Supreme Court Cases

294. I have gone through paragraph No.16 but these principles

can be made applicable when the Appellate Court will consider
9 AO.14-2023+1.odt

the case on merits.

16. He has further cited following judgments which describe

the scope of powers under Order 41 Rule 23-A of the Specific

Relief Act.

(a) Balkrishna Dattatraya Bhutte and others Vs.
Dattatraya Shankar Mohite and others ; 1997, BCI
53.

(b) P. Purushottam Reddy and another Vs. M/s Pratap
Steels Ltd.; AIR 2002 SC 771.

(d) Vishnu Dashrath Chavan Vs. Pundalik Dashrath
Chavan ; 2017 (5) Mh.L.J. 163.

Following principles can be culled down from the above

judgments :

(i) The findings recorded by the Trial Court needs to

be considered by the Appellate Court and if found

necessary then only order of remand can be

passed.

(ii) The retrial of the matter can be considered in case

some additional evidence is required to be
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produced.

(iii) No order of remand can be passed for the reasons

that reasoning of the Trial Court in some aspect is

found to be wrong.

(iv) If the material is available before the Appellate

Court it should decide the matter on merits.

(v) Lastly, Appellate Court has to be circumspect in

ordering the remand as unwarranted order of

remand results in protraction of the litigation and

that would cause injustice to the litigants.

17. Learned counsel Mr. Bolkar for the respondents has also

cited following judgments on point of non-joinder of necessary

parties.

(a) Ramesh Hirachand Kundanmal Vs. Municipal
Corporation of Greater Bombay and others ;
(1992) 2 Supreme Court Cases 524.

(b) State of Himachal Pradesh Vs. Milkhi Ram (Dead)
by and others ; (2007) 15 Supreme Court Cases
750.

(d) Jhabbar Singh (Deceased) Through Legal Heirs
and others Vs. Jagtar Singh S/o Darshan Singh ;
(2023) 14 Supreme Court Cases 199.

(e) Pandurang Sitaram Pande and others Vs. Avinash
Ramkrishna Pande and others ; (2016) 5 Bom CR
304.

(f) Sumitra Anna Aware and others Vs. Anusaya
Rajaram Aware and others ; 2012 (3) Mh.L.J. 649.

18. The principles laid down by five Judges Bench in

Kanakarathanammal (supra) would prevail. Those are not

considered in the judgments of the Supreme Court cited above.

But in the matter of Pandurang Pande (supra), learned Single

Judge referred the judgment. But the distinguishing facts in

that case is that the suit for partition was decreed partly albeit

necessary parties were not joined. But, in Appellate Court the

remedial measure was taken by filing application to join those

persons as necessary parties. In those contexts, in paragraph

Nos.12 to 17, the observations are recorded. The judgment is

distinguishable on facts and it would not enure to the benefit

of respondent.

19. In the matter of Sumitra Aware (supra) referred above

the contents of paragraph Nos.10 to 17 indicate that stumbling
12 AO.14-2023+1.odt

block of non-joining the sisters was removed by making

specific application to implead them. In the case at hand no

such steps are taken by the respondents. This judgment will

not help the respondent.

20. Further reliance is placed on the judgment of R.

Mahalakshmi Vs. A. V. Anantharaman and others ; (2009) 9

Supreme Court Cases 52. It shows that facts are

distinguishable. No reference is made to five Judges Bench

judgment rendered by the Supreme Court in the case of

Kanakarathanammal (supra). In that case, initially the matter

had reached to the Supreme Court and it was remanded to the

Trial Court and after that remand again matter reached

Supreme Court. This judgment also will not help the

respondents.

21. Further, reliance is placed on the judgment of Hiralal

Chhaburao Jawale Vs. Nandlal Chhaburao Jawale and others ;

2024 AIR OnLine 2024 Bom 1673. This judgment will not help

the respondents because the Co-ordinate Bench did not

consider five Judges Bench judgment in Kanakarathanammal

(supra).
13 AO.14-2023+1.odt

22. Respondents have also cited J. Balaji Singh Vs. Diwakar

Cole and others ; (2017) 14 Supreme Court Cases 207 and

Satnam Singh and another Vs. Malook Singh and others ;

(2018) 11 Supreme Court Cases 798 on point of scope of

Appellate Court in remanding the matter. In those cases,

application under Order 41 Rule 27 was submitted and the

remand was found necessary for bringing the additional

evidence on record. The facts are distinguishable. The

principles cannot be made applicable to the present case.

23. For the reasons stated above, I find that the substantial

questions of law need to be answered in favour of the

appellants and thus appeal succeeds. I, therefore, pass

following order :

ORDER

(i) Appeal from order is allowed.

(ii) Impugned order passed in Regular Civil Appeal

No.19 of 2017 is quashed and set aside.

(iii) The Appellate Court shall decide appeal on its own

merits expeditiously.
14 AO.14-2023+1.odt

(iv) Both parties shall appear before the Lower

Appellate Court on 16.02.2026.

(v) In view of disposal of first appeal, pending civil

application does not survive. Civil application as

such is disposed of.

(SHAILESH P. BRAHME, J.)
…
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