CR/175/2023 on 4 August 2026

2026:HHC:33102

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CR No. 175 of 2023

Date of decision: 04.08.2026. Ramesh Chand & others

...Petitioners.

Versus State of H.P. & others

...Respondents.

Coram:

The Hon’ble Mr. Justice Romesh Verma, Judge.

Whether approved for reporting?1 For the petitioners : Mr. Ajay Sharma, Sr. Advocate with Mr. Atharv Sharma, Advocate.

For the respondents : Mr. Manish Thakur, DAG, for respondent No.1.

Mr. Sanjay Sharma, Advocate, for respondents No. 7, 8 (a) to 8 (d), 9, 10 (a), 16 and 19.

Respondents No. 2 to 5, 11 to 15, 20 to 23 and 25 to 30 ex-parte.

Romesh Verma, Judge (Oral):

The instant petition arises out of the order as passed by learned Additional District Judge, Hamirpur, H.P., dated 23.08.023, whereby the application filed under Section 114, Order 47 Rule 1, read with Section 151 CPC for review of the order dated 24.01.2017 in case, titled as, Hari Singh and others vs. State of Himachal Pradesh & others, came to be

Whether reporters of Local Papers may be allowed to see the judgment?

dismissed.

2. The facts as emerge in the present case are that the present petitioners filed a civil suit bearing No. 103 of 2002 in the Court of learned Civil Judge (Jr. Division), Court No.3, Hamirpur and the same was dismissed by the learned trial Court on 27.08.2012.

3. Feeling dissatisfied, the present petitioners filed an appeal, bearing Civil Appeal No. 123 of 2012 before the learned First Appellate Court. During the pendency of the appeal, one application was filed by Sh. Hem Raj son of late Sh. Hari Singh for dismissing the appeal as having been withdrawn. The said application came to be filed by Sh. Hem Raj on 24.01.2017. It was stated in the application that a writ petition regarding the suit land is pending before the High Court and as per the directions of the High Court in the said petition, the applicants/appellants do not want to pursue the appeal. Therefore, it was prayed that the appeal be dismissed as having been withdrawn.

4. The learned First Appellate Court vide its impugned order dated 24.01.2017 allowed the application filed by Sh. Hem Raj for withdrawal of the appeal on the ground that regarding the suit land, one more case is pending before the

High Court. Therefore, in view of the same, the appeal stands dismissed as having been withdrawn.

5. Thereafter, out of total 40 appellants before the learned First Appellate Court, 35 appellants filed an application for seeking review of the order as passed by the learned First Appellate Court dated 24.01.2017, whereby the appeal was ordered to be dismissed as having been withdrawn.

6. In the application, it was averred that civil appeal was pending before the learned First Appellate Court and the same was dismissed as withdrawn on 24.01.2017. As per the petitioners, it was stated that civil appeal was preferred against the judgment and decree dated 27.08.2012, whereby the suit filed by the plaintiffs was ordered to be dismissed.

7. As per petitioners, since the appeal filed by them was having merit and was likely to be allowed in all probabilities, therefore, appellant No. 1 (a), Hem Raj, son of late Sh. Hari Singh in the present proceedings, met with the counsel of the appellants and filed an application in a clandestine manner by wrongly and illegally stating that all the appellants do not want to pursue the appeal against the respondents and the same may be ordered to be dismissed as having been withdrawn.

8. It has been stated in the application that on the request of appellant No. 1 (a) Sh. Hem Raj son of late Sh. Hari Singh, the counsel for the appellants filed an application under Section 151 CPC for dismissing the appeal as having been withdrawn, in good faith, without consulting the remaining appellants as the said appellant, Sh. Hem Raj, was regularly attending and pursuing the appeal on behalf of all the appellants. No instruction of the remaining appellants was sought by the counsel of the appellants and moved the application in good faith on the instruction of appellant No. 1

(a) Hem Raj.

9. It has been stated in the application that on account of passing of order dated 24.01.2017, the appellants have suffered irreparable loss and they never instructed either Sh. Hem Raj or their counsel for dismissal of the appeal as having been withdrawn. Further, it has been stated that the interest of the appellants was not taken into consideration while filing the said application. Therefore, it was prayed that the application filed under Section 114, Order 47 Rule 1 read with Section 151 CPC be allowed and the order dated 24.01.2017, passed by the learned First Appellate Court be reviewed.

10. The said application came to be contested by the non-applicants, whereby all the averments as made in the application were denied and the respondents prayed for dismissal of the said application.

11. The learned First Appellate Court vide its impugned order dated 23.08.2023 dismissed the application as filed by the present petitioners.

12. Feeling dissatisfied, the petitioners have approached this Court by assailing the impugned order on various grounds.

13. It is contended by the learned Senior Counsel for the present petitioners that the impugned order as passed by the learned First Appellate Court is erroneous and liable to be quashed and set aside. He submits that about appellants had filed the appeal before the learned First Appellate Court and merely on the basis of an application filed by one of the appellants, namely Sh. Hem Raj, the learned First Appellate Court, without verifying the truth in the present case, allowed the same, which had caused lot of prejudice to the remaining appellants. He further submits that the application which was filed by Sh. Hem Raj is neither supported by an affidavit nor the remaining appellants/petitioners had instructed him to do so. The said application was filed without the express consent of the present petitioners and since the suit pertains to land more than 150 kanals, substantial rights of the parties are under adjudication. Therefore, there was no occasion for the petitioners to have withdrawn the appeal, which was filed against the dismissal of the suit.

14. Learned counsel for the private respondents and Mr. Manish Thakur, learned Deputy Advocate General have fairly conceded that once there 40 appellants before the learned First Appellate Court, merely on the basis of an application filed by Sh. Hem Raj one of the appellants, the appeal could not have been permitted to be withdrawn.

15. Perusal of record of the case file reveals that an application came to be filed by Sh. Hem Raj but interestingly, the said application is not supported by an affidavit. In the entire body of the application, it has nowhere been mentioned that all the appellants before the learned First Appellate Court had instructed him to file the said application. There is no whisper in the application that the remaining appellants before the learned First Appellate Court had authorized him to withdraw the appeal which was pending before the said Court. The application has been filed in a very casual manner and it only states that since writ petition regarding the suit land is pending before the High Court, therefore, the applicants/appellants do not want to pursue the appeal. In view of the fact that the application came to be filed only by one of the appellants, Sh. Hem Raj, which was not supported by an affidavit, no reliance can be placed on the same.

16. As rightly pointed out by the learned Senior Counsel for the petitioners, the said application has not been supported by an affidavit and there is no averment in the application that the same was filed with the express consent and on the instructions of the remaining petitioners/appellants before the learned First Appellate Court. The learned Senior Counsel has drawn the attention of this Court to the entire case file and none of the parties was able to demonstrate that in the writ petition, any direction has been issued by this Court. Therefore, the impugned order which has been passed by the learned First Appellate Court on the face of it, is not sustainable in the eyes of law, as before entertaining the said application, it was incumbent upon the said Court to have expressly satisfied itself qua the truthfulness of the contents of the application that too in the presence of 40 appellants as mentioned in the memo of appeals and in the absence of doing so, certainly, lot of prejudice has been caused to the remaining petitioners/ appellants.

17. Merely, on the filing of application filed by Sh. Hem Raj, the other petitioners/appellants cannot be deprived of the rights in the suit. Immediately, on coming to know about the withdrawal of the appeal Review Petition came to be filed. The learned Appellate Court should have adopted practical approach while deciding the said application. Courts are meant to impart substantial justice and should not be swayed by technicalities.

18. The learned counsel for the respondents have no objection in case the appeal which was filed before the learned First Appellate Court is restored to its original number and the same is decided on its own merit.

19. Consequently, in view of the observation as made hereinabove, the impugned order as passed by the learned Additional District Judge, Hamirpur dated 23.08.2023 and 24.01.2017 are quashed and set aside and the appeal is restored to its original number with a direction to the learned First Appellate Court to take the appeal to its logical end. The parties undertake to appear before the learned First Appellate Court on 20.08.2026.

20. It is contended by the learned counsel for the private respondents that during the pendency of the present petition, certain petitioners and respondents have expired. Though, appropriate steps were taken by the petitioners for bringing on record their legal representatives, however, the present petitioners may be directed to take consequential steps in order to rectify the record. The learned counsel for the petitioners undertakes to take the appropriate steps in accordance with law.

21. With these observations, the present petition is disposed of. Pending applications, if any, also stand disposed of.

(Romesh Verma)

Judge 4th August, 2026. (kck)