GAJINDER PAL SINGH Vs. MEHTAB SINGH

JUDGEMENT

(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. 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.