Delhi High Court (August 21, 2001) 2001 (TLS)125764 2001-ILRDLH-7-148 GAJINDER PAL SINGH Vs. Mehtab Singh A. K. SIKRI ( 1 ) THIS application is filed on behalf of defendants 1,3,4 and 5 under Order VII Rule 11 and section 151 of the Code of Civil Procedure for rejection of the plaint for non-Joinder of necessary party. The background facts which have given rise to filing of this application by the said defendants may first be recapitulated. ( 2 ) THE plaintiff has filed this suit for partition and rendition of accounts. He is seeking partition of certain immovable properties claiming that he has 1/5th or 1/10th share therein. The plaintiff is son of defendant No. 1. Defendants 3 and 4 are other sons of defendant No. 1 and defendant No. 5 is the wife of defendant No. 1 (mother of the plaintiff ). It is claimed in the plaint that plaintiff s grand father i. e. father of defendant No. 1 owned these suit properties. ; He had two sons, namely, defendant No. 1 and Mr. Hari Singh who was originally impleaded as defendant No. 2. In the plaint it is stated that if the properties devolve upon two sons of Prof. Parman Singh then half share would come to the family consisting of defendant No. 1, his wife, plaintiff and defendants 3 and 4 and, therefore, plaintiff s share would be 1/5th of this half i. e. 1/10th. On the other hand if defendant No. 2 is not to get any share then the entire property would be shared by plaintiff and defendants 1,3 to 5 in l/5th share each. ( 3 ) IN respect of defendant No. 2 Mr. Hari Singh, it is a, common case of the parties that he had left India long ago and was residing in Japan. The plaintiff coulds not serve him in the given address as the notices. sent at that address in Japan were returned back with the remarks that he is not residing in the Japan address. After leaving the said address whereabouts of defendant No. 2 are not known. Therefore, the plaintiff was not able to serve him. Admittedly, defendants 1 and 3 to 5 also do not know the present address of defendant No. 2. After leaving the said address whereabouts of defendant No. 2 are not known. Therefore, the plaintiff was not able to serve him. Admittedly, defendants 1 and 3 to 5 also do not know the present address of defendant No. 2. Since the plaintiff was not able to defendant No. 2 and the suit was not proceeding further in the absence of service upon him on 3/9/1998 counsel for the plaintiff prayed for deletion of -defendant No. 2 from the array of parties. This request was allowed and the name of defendant No. 2 was deleted-from the array of parties. It is a case of the plaintiff that plaintiff was forced to adopt this course of action as in the absence of address; defendant No. 2 could not be served and on the other hand other defendants, namely, the applicants in this case were blaming the plaintiff for delay in the progress of his case. Be as it may, after the deletion of defendant No. 2 from the array of parties, present i. A. has been filed by the applicants for rejection of the plaint under Order VII Rule 11 Civil Procedure Code on the ground that Shri Hari Singh being the necessary party has not been impleaded as a party and, therefore, the plaint is liable to be rejected. ( 4 ) DEFEDANT No. 1 who appeared in person submitted that Shri Hari Singh was a necessary party and in his absence the suit was not maintainable and was liable to be dismissed. In support of his plea he relied upon the following judgments: 1. Kanakarathanammal Vs. V. S. Loganatha mudaliar and another AIR 1965 SC 271 . 2. Aswini Kumar Roy and another Vs. Kshitish chandra Sen Gupta and others AIR 1971 Cal 252 3. Registrar. Manonmaniam Sundaranar universifcy Vs. Suhura Beevi Educational Trust and others AIR 1995 Mad 42 4. Rajneesh Kumar Singhal Vs. The State (National Capital Territory of Delhi) 2001 (57) DRJ 411 (FB) (Delhi) 5. Udrej Singh and another Vs. Ram Bahal singh and others AIR (33) 1946 Allahabad 436 6. Dwijendra Narain Roy Vs. Jogesh Chandra dey and others 1924 Indian Cases Vol. 79 Pg. 520 plaintiff was forced to have the name of defendant No. 2 deleted from the array of parties. It was also submitted that when the whereabouts of Mr. Udrej Singh and another Vs. Ram Bahal singh and others AIR (33) 1946 Allahabad 436 6. Dwijendra Narain Roy Vs. Jogesh Chandra dey and others 1924 Indian Cases Vol. 79 Pg. 520 plaintiff was forced to have the name of defendant No. 2 deleted from the array of parties. It was also submitted that when the whereabouts of Mr. Hari Singh were not known for the last seven years he was presumed to be dead. He had not visited India nor any of his children had visited India during all this period and after leaving India and settling in Japan all possible efforts were made by the plaintiff to serve him and in any case In the peculiar circumstances of this case when it was not known where Mr. Hari Singh and for that reason he could not be served, his absence would not be material or fatal in deciding the present case. It was also submitted that in any case it was a matter to be considered at appropriate stage and application under order VII Rule 11 Civil Procedure Code was not maintainable on this ground. ( 5 ) AFTER considering the submissions of both the parties, I am of the view that this aspect need not be decided at this stage in this application. Defendant no. 1 -has filed the application under Order VII Rule 11 civil Procedure Code which deals with rejection of the plaint under certain circumstances which are mentioned in Clauses (a) to (d) of Rule 11. The ground taken, namely, non-Joinder of necessary party is not covered by any of these Clauses. After all the case put up by defendant no. 1 is not that of rejection of plaint but dismissal of the suit on the ground that necessary party, namely, mr. Hari Singh has not been joined in these proceedings and for that reference is placed on proviso to Rule 9 of Order 1. This is a matter which will have to be considered at the appropriate stage after framing of the issues including the issue oh this aspect. After framing of issues, this particular issue can be treated as preliminary issue and if no evidence is required, it can be listed for arguments straightway. Even if it is ultimately held that Mr. This is a matter which will have to be considered at the appropriate stage after framing of the issues including the issue oh this aspect. After framing of issues, this particular issue can be treated as preliminary issue and if no evidence is required, it can be listed for arguments straightway. Even if it is ultimately held that Mr. Hari Singh is a necessary party, it does not necessarily follow that the suit must be dismissed without giving any opportunity to the plaintiff to amend the plaint by adding the absent party. In Motoi Mia and others Vs. Abdul Haque and others AIR 1984 Gau 77 , it has been held by Gauhati high Court that proviso added to Section 99 and Order 1 rule 9 by amendment of 1976 are not to be construed to mean that merely because a necessary party was not before Court the suit be dismissed. In such case the power of the Court which it can exercise under Order 1 rule 10 (2) and Order VI Rule 17 Civil Procedure Code, which remain unamended can be invoked. Therefore, at this stage in any application filed by defendant N0. 1 under Order VII rule 11 Civil Procedure Code the suit of the plaintiff cannot be dismissed. It may be mentioned that various judgments cited by the defendant No. 1 would show that in those cases the. Court ultimately dismissed the suit on the ground of non-joinder of necessary party only after framing of. Issues and the trial had taken place. ( 6 ) CWITH liberty to defendant No. 1 to press this point after issues are framed including on the point of non-joinder of parties. --- *** --- .