Neutral Citation No.(2025:HHC:44020) IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAO No. 374 of 2024 Reserved on: 12.12.2025 Date of decision: 17.12.2025 ________________________________________________ Lal Singh & others. …..Appellants. Versus Sher Singh. ……Respondent. ________________________________________________ Coram The Hon'ble Mr. Justice Sushil Kukreja, Judge. 1 Whether approved for reporting? ________________________________________________ For the appellants: Mr. H.S. Rangra, Advocate. For the respondent: Mr. Y.P. Sood. Advocate. Sushil Kukreja, Judge. The instant appeal is maintained by the appellants, who were defendants before the learned Trial Court (hereinafter referred to as “the defendants”) under Order 43 Rule-1 (U) of Civil Procedure Code, 1908, against judgment, dated 07.11.2024, passed by learned District Judge, Mandi, District Mandi, H.P., in Civil Appeal No. 26 of 2024, whereby the appeal preferred by appellant-Sher Singh, who was plaintiff before the learned Trial Court and respondent herein (hereinafter referred to as “the plaintiff”) was allowed and the judgment and decree, dated 09.08.2024, passed by learned Civil Judge, Court No. 3, 1 Whether reporters of Local Papers may be allowed to see the judgment? Neutral Citation No.(2025:HHC:44020) 2 Mandi, District Mandi, H.P., in CIS Registration No. 38 of 2019, was set-aside and the case was remanded back to the learned Trial Court for decision afresh. 2. The brief facts of the case are that plaintiff filed a civil suit against the defendants (appellants herein) for injunction qua the land comprised in Khata khatauni No. 63/102, bearing Khasra No. 467, measuring 10-10-19 bighas, situated in Mohal Nasloh/370, Tehsil Sadar, District Mandi, H.P., (for short “the suit land”) which was dismissed by the learned civil Judge, Court No. 3 Mandi, District Mandi, H.P., in Civil Suit Reg. No. 38/2019 vide judgment and decree, dated 09.08.2024,. Assailing the aforesaid judgment and decree, the plaintiff filed an appeal before the learned District Judge, Mandi, under Section 96 of CPC and the learned District Judge allowed the same and remanded the case back to the learned Trial Court for decision afresh, hence the appellants (defendants) filed the instant appeal with a prayer to set-aside impugned judgment, dated 07.11.2024, passed by learned District Judge, Mandi. 3. The learned counsel for the appellants contended that the impugned judgment passed by the learned Trial Court is not sustainable in the eyes of law, as the same has Neutral Citation No.(2025:HHC:44020) 3 been passed in a slip-shod manner and without going through the record. He further contended that the learned District Judge had wrongly held that the judgment passed by the learned Trial Court is against the principles of natural justice as statement of PW-2 Murari Lal is incomplete without his cross-examination, whereas the defendants have never raised any objection regarding this fact, as the suit was decided on merits. He further contended that the learned First Appellate Court had wrongly held that the judgment passed by learned Trial Court was against the dead person and the same is a nullity, whereas none of the parties had died before the learned Trial Court. 4. I have heard the learned counsel for the appellants, learned counsel for the respondent and carefully examined the entire records. 5. The perusal of the impugned judgment reveals that the learned First Appellate Court remanded the case back to the learned Trial Court for decision afresh on the ground that the judgment was passed against the dead person. The relevant para of the judgment passed by the learned First Appellate Court, for the sake of ready reference, is reproduced hereunder: Neutral Citation No.(2025:HHC:44020) 4 “25. For the forgoing reasons, in the attendant facts and circumstances on record vis-à-vis bearing in mind the ratio of authorities cited supra, I arrive at an inescapable conclusion that in the present case, the judgment was passed against dead person and the same is a nullity. The impugned judgment and decree passed by the learned Trial Court calls for interference from this Court.”… … … 6. The learned counsel for the parties are ad idem to the fact that none of the parties had died during the pendency of the suit before the learned Trial Court. Even while giving the findings in para 25, the learned First Appellate Court, has failed to mention that as to which of the defendants had expired during the pendency of the suit 7. The learned counsel for the appellants next contended that the learned District Judge, Mandi, i.e. learned First Appellate Court had wrongly held that the judgment passed by the learned Trial Court is against the principles of natural justice and the statement of the witness Murari Lal (PW-2) is incomplete without his cross-examination, whereas the defendants have never raised any objection regarding the fact that reasonable opportunity was not afforded to the defendants to cross-examine PW-2, as the suit was decided on merits and no prejudice was caused to the defendants. It is pertinent to mention here that the learned First Appellate Court, while passing the impugned judgment has observed as under: Neutral Citation No.(2025:HHC:44020) 5 “22. In order to substantiate, the plaintiff examined himself as (PW-1) and also examined Murari Lal (PW- 2). On the contrary, the defendant No. 1 stepped into witness box as (DW-1) and examined Jaya Kumari (DW-2) in his favour. It is apposite to mention that Sh. Murari Lal (PW-2) was examined on 19.07.2023 by tendering into evidence his proof affidavit (PW-2/A). However, learned Counsel for the defendants prayed time for cross-examination, which was allowed. It is apt to conclude that the evidence on behalf of the plaintiff was closed by learned Counsel for the plaintiff vide order dated 27.02.2024. It is crystal clear that neither the witness Murari Lal (PW-2) was cross-examined nor any statement to this effect was recorded that he need not to be examined before the Court. The testimony of Murari Lal cannot be taken into consideration by reading the examination-in- chief only. The testimony of a witness is comprising of examination-in-chief as well cross-examination. Learned Trial Court considered the testimony of Murari Lal (PW-2) by referring it to the list of witness and thereby went on to decide the case on merits. Since a proper and reasonable opportunity of being heard was not afforded to the defendant to cross- examine Murari Lal (PW-2). It is argued that no prejudice will cause as the suit of the plaintiff was dismissed on merits.” 8. However, this contention of the learned counsel for the appellants that the defendants had never raised any objection regarding the fact that reasonable opportunity was not afforded to the defendants to cross-examine PW-2 Murari Lal as the case was decided on merits and no prejudice was caused to the defendants, is kept open and shall be decided by the learned First Appellate Court. 9. As observed earlier, none of the parties had died before the learned Trial Court and despite that the learned District Judge had remanded the case back to the learned Trial Court for decision afresh on the ground that the judgment was passed against the dead person and the same Neutral Citation No.(2025:HHC:44020) 6 is a nullity. It appears that the impugned judgment, dated 07.11.2024, has been passed by the learned District Judge without due application of mind. The learned District Judge has not cared to see the record before passing the impugned judgment and had passed the same in a slip-shod manner by erroneously observing that the judgment was passed against the dead person and the same is a nullity whereas none of the parties had died during the pendency of the suit before the learned Trial Court. It is not expected from the District Judge, who is the head of the District Judiciary to pass judgments in such a manner without going through the record. This practice of the District Judge in passing the judgment without due application of mind and without caring to see the record is highly deprecated. 10. Hence, in these circumstances, the impugned judgment, dated 07.11.2024 cannot be sustained and is set- aside. The matter is remanded back to the learned First Appellate Court for decision afresh in accordance with law, after giving reasonable opportunity of being heard to the parties concerned. 11. All interim orders stand vacated. 12. Parties are directed to appear before the learned Neutral Citation No.(2025:HHC:44020) 7 First Appellate Court on 15th January, 2026. 13. Learned Registrar (Judicial) shall ensure that the entire record be remitted to the learned First Appellate Court forthwith. 14. In view of the above, the instant appeal is disposed of. Pending application(s), if any, shall also stand(s) disposed of. Let a copy of this order be sent to the concerned District Judge, who had passed the impugned judgment, forthwith. ( Sushil Kukreja ) Judge 17th December, 2025 (virender)