Surendra Kumar Jain And Anr. vs Santosh Kumar Jain And Ors.
1997 Latest Caselaw 793 Del

JUDGMENT

K.S. Gupta, J.

(1) This or derwill govern the disposal of l.As.3951-52/97filed,by defendants 1 & 3. By filing I.A. 3951/97 defendants 1 & 3 seek to take the plea by way of preliminary objection 2A in their joint written statement as under: "That the suit is bad for non joinder of necessary & proper party inasmuch as the defendant No. 2 Sh. Mehtab Singh Jain is the Karta of undivided H.U.F. & the fact that no partition of the suit propety has been made, the entire suit is bad for non-joinder of necessary & proper party."

Following additional issue No. 3A is sought to be framed by filing I.A. 3952/97By defendants 1 & 2. "Whether the suit is bad for deletion/non-joinder of necessary and proper party to the suit ? If so, to what effect ?"

(2) Only a few facts are necessary for deciding both the said I.As.

(3) Surindra Kumar Jain and his wife Saroj Jain filed suit, inter alia, on the allegation that being owners they are in possession of ground, first, second, third and top floors of property No. 279, Ward No. 1V, situated in Bazar Dariba Kalan, Chandni Chowk, for the last about 20 years. Defendants 1 & 3 at the instigation of defendant No. 2 started using forcibly the toilet marked X in the plan Annexure B although the key of the toilet is with the plaintiffs and electricity and water used in the toilet is metered from the electricity and water meters which stand in the name of the plaintiffs. It is further alleged that defendants 1 & 3 at the instance of defendant No. 2 tried to disturb the possession of the store situated on the second floor of the property and they also put their lock underneath the lock of the plaintiffs on the store. Key of the lock which was originally put on the store is with the plaintiffs. Defendants 1 & 3 at the instance of defendant No. 2 are further trying to dispossess the plaintiffs from the portion shown in red in the plan on the second floor of the property. It was prayed that a decree of permanent injunction may be passed against the defendants restraining them from disturbing the possession of the , plaintiffs over the suit property otherwise than in due course of law.

(4) Defendants 1 & 3 in their joint written statement by way of preliminary objections have taken the plea that the suit property is the H.U.F. property. Defendant No. 2 is the Karta of the H.U.F. Plaintiff No. 2, who's the wife of plaintiff No. I and defendant No. 3 who is the wife of defendant No. 2, have no right or interest of any kind whatsoever in the suit property. It is stated that the suit by one of the coparceners against the Karta and the other coparceners particularly when no partition of the property he.s been made, is wholly misconceived and is liable to be dismissed.

(5) Likewise is the plea taken by defendant No. 2 in his written statement.

(6) One of the issues framed on February 18,1982 on the pleadings of the parties runs was: "WHETHERthe suits is not maintainable in its present from ?"

(7) After the evidence of the plaintiffs' concluded, on April 8,1997, a statement was made on their behalf by the Counsel that the name of defendant No. 2 may be deleted and accordingly the name of defendant No. 2 was deleted from the array of the parties. It is this deletion of the name of defendant No. 2 which has given rise to the filing of both the aforesaid I.As.

(8) I have heard the parties' Counsel.

(9) Taking note of the pleas raised in the written statement about the suit property being H.U.F. property and non-mainta inability of the suit by one coparcener against the other coparceners and the Karta, the plea now sought to be taken after the deletion of the name of defendant No. 2 that the suit is bad for non-joinder of proper and necessary party cannot be legally disallowed. I.A. 3951 /97 is, thus, accepted and defendants 1 & 3 are permitted to raise preliminary objection 2A on the lines indicated in para 6 of the application.

(10) Resultantly, I.A. 3952/97 has also to be allowed and the following additional issue as number 3A is framed: "Whether suit is bad for deletion/non-joinder of necessary and proper party to the suit ? If so, to what effect ?"

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(11) This issue is to be decided alongwith other issues framed in the suit.