JUDGMENT
A.N. Jindal, J.
1. The petitioner-plaintiff (hereinafter referred to as the plaintiff) has called in question two orders dated 16.1.2004 and 26.2.2004 wherein the appellate Court in the appeal titled as Kanwar Sain v. Ram Pal etc. pending before it against Civil Suit No. 6 of 3.1.1954 decided on 31.1.2003 titled as Ram Pal v. Hari Singh HUF and Ors. allowed the defendants-respondents to implead Akki Devi as respondent, in the application filed by them under Order 22 Rule 4 C.P.C. for impleading the LRs of Hari Singh HUF.
2. The facts in the backdrop of the case are that Ram Pal filed a suit for specific performance against the defendants M/s Hari Singh HUF, M/s Sant Singh HUF and others in which the defendants took a specific plea that Akki Devi, the wife of Jangir Lal daughter of Hari Singh is a necessary party and she should have also been impleaded as party being the member of HUF. On this specific plea raised by the defendants, a specific issue No. 2 was framed which reads as under:
Whether the suit is bad in non-joinder of necessary parties and is bad in misjoinder of necessary parties? OPD.
3. The lower Court vide its Judgment dated 31.1.2003, while observing that all the members of the M/s Hari Singh HUF have been made parties and no other member exists and therefore decided this issue in favour of the plaintiffs. Aggrieved by the aforesaid Judgment dated 31.1.2003, Kanwar Sain Bansal defendant-respondent went up in appeal. During the pendency of the appeal Akki Devi filed an application that she being the LR of deceased Hari Singh is necessary party. The first appellate Court on 17.10.2003, on the application moved under Order 22 Rules 2 and 4 read with Section 151 C.P.C. for impleading Akki Devi @ Savitari Devi as LRs of deceased Hari Singh allowed the application subject to all just exceptions and fixed the case for arguments on 16.1.2004.
4. The other order challenged by the revision petitioner is dated 26.2.2004 whereby the review petition filed by respondent No. 1 Ram Pal for withdrawing the order of im-pleadment of Akki Devi as a party has been dismissed.
5. First of all it may be mentioned that Hari Singh was not a party to the civil suit filed by Ram Pal but had impleaded Hari Singh HUF through its karta Kulwant Rai son of Hari Singh as a party to the suit. The other son Kanwar Sain Bansal member of Hari Singh, HUF, Mansa was also impleaded as defendant No. 7 in the suit. Certainly Akki Devi being the married daughter, is not the member of Hindu Undivided Family of late Hari Singh; therefore she was not made party to the suit. Consequently, the Civil Judge, Sr. Division, Mansa decided issue No. 2 in favour of the plaintiff while holding that no other person was the necessary party to the suit.
6. The first appellate Court could not implead Akki Devi as a party on two counts i.e. firstly as LR of Hari Singh (deceased) because Hari Singh was not a party to the suit but it was Hari Singh HUF, who was the party, of which Kulwant Rai and Kanwar Sain Bansal were the members. Secondly, Akki Devi being the married daughter also could not be impleaded as such being the member of Hindu Undivided family. Therefore, the appellate Court acted negligently without examining the consequences of impleading her as a party, as has been rightly pointed out by the counsel for the revision petitioner that on the basis for the order regarding her impleadment as party, she has sought permission from the Court to file the written statement and lead evidence and cross-examination, which amounts to declaring the trial de novo. It is well established by now that the appellate court should be slow enough in impleading a party at the appellate stage as after impleading a person as a party, the trial will become de novo. Order dated 16.1.2004 appears to have been passed by the appellate Court after recording the consent of non-contesting parties i.e. defendant Nos. 2 to 5 and did not bother to have the consent of the contesting respondents. While taking the case from other angle, the action on the part of the appellate Court in impleading Akki Devi as a party amounts to upsetting of issue No. 2 in the Judgment i.e. a party contesting the appeal, which is unknown to the legal jurisprudence and as such after examining the case from all angles and treating the same to be bad, as an exceptional hardship.
7. Consequently, it is observed that impleadment of Akki Devi as a party respondent in the suit having affected the trial Court Judgment has resulted into miscarriage of justice. Therefore, it has become essential to invoke the provisions under Section 227 of the Constitution. Accordingly, orders dated 16.1.2004 and 26.2.2004 are hereby set aside and the appellate Court is directed to decide the appeal of this stalemate litigation pending since 1984 within two months from today positively.