Order 18

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: CS 612/23
SEEMA JAIN Vs. PANKAJ JAIN
17.04.2026
Present : Sh. Siddhant Dhingra, Ld. Counsel for the plaintiff
alongwith all the plaintiffs in person.
Sh. J.K. Bhardwaj, Ld. Counsel for the defendant no.
alongwith defendant no. 1 in person.
Defendant no. 2 is already exparte vide order dated
14.01.2025.
Sh. Ankit Mishra, Sh. Ld. Associate Counsel (enroll
no. D/128/2024) for Ms. Nikita Tiwari, Ld. Counsel
for the proposed defendant namely Ms. Sonia Jain.
Matter is listed for reply and arguments on application under
Order Rule 10 CPC and for arguments on application under Order
VII Rule 11 CPC today.
At the outset, Ld. Associate Counsel appearing for the
proposed defendant submits that the reply to the application under
Order I Rule 10 CPC has not yet been filed and seeks further
opportunity to do so. The said request is vehemently opposed by Ld.
Counsel for the plaintiff on the ground that sufficient opportunities
have already been granted, however, despite such indulgence, no
reply has been filed till date.
A perusal of the record reveals that repeated opportunities
have indeed been granted to the proposed defendant to file the reply,
yet no reply has been filed, though, the proposed defendant is the
wife of the defendant no. 1 who is regularly been appearing before
this Court and thus, the proposed defendant cannot even plead
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ignorance of the proceedings takes place in the court. Therefore, in
these circumstances, this Court is not inclined to grant any further
adjournment, and accordingly, this Court proceeds to decide the
application on merits and available judicial record.
On merits, it is the contention of defendant no. 1 that the
proposed defendant is his wife and that the suit property has already
been sold to her in the year 2001, thus the present suit is not
maintainable.
Per contra, Ld. Counsel for the plaintiff submits that
the alleged transaction of sale came to light only upon the filing of
the written statement by defendant no. 1, and therefore, in order to
effectively and completely adjudicate upon the issues involved in the
present suit, the presence of the proposed defendant is
indispensable.
This Court finds considerable merit in the submissions
advanced on behalf of the plaintiff. The scope and ambit of Order I
Rule 10 CPC empowers the Court to implead a party whose presence
is necessary or proper for the effective adjudication of all the
questions involved in the suit. In the present case, the proposed
defendant is stated to be the transferee of the suit property by virtue
of a transaction allegedly executed by defendant no. 1.
If such a plea is taken on record and remains untested in the
absence of the proposed defendant, any decree passed by this Court
may be rendered inexecutable and may not attain finality. Non-
impleadment of such a party would, therefore, not only impede a
comprehensive adjudication but would also give rise to multiplicity
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of proceedings.
Further, the nature and validity of the alleged transfer as to
whether defendant no. 1 possessed any legal right to effect such
transfer, and whether the transaction in question is genuine or merely
a sham transaction intended to defeat the rights of the plaintiff are
the matters which necessarily require adjudication upon evidence.
Such determination cannot be effectively undertaken in the absence
of the proposed transferee, whose rights, if any, are directly in
issue.
It is also pertinent to note that defendant no. 1 himself, in his
application under Order VII Rule 11 CPC, has raised an objection
regarding the non-impleadment of the proposed defendant. This
position, taken by defendant no. 1, further reinforces the necessity
of the proposed defendant being brought on record, as even the
defendant no.1 acknowledges the fact that her presence in the suit is
mandatory to resolve the dispute involve in the present litigation.
In view of the aforesaid discussion, this Court is of the
considered opinion that the proposed defendant is not merely a
proper party but a necessary party for the just, effective, and
complete adjudication of the present dispute. Accordingly, the
application under Order I Rule 10 CPC is allowed. The proposed
defendant, namely Ms. Sonia Jain, is hereby impleaded as defendant
no. 3 in the present suit. The application stands disposed of in the
aforesaid terms.
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Ld. Counsel for the defendant sought an opportunity to move
an application under Order VI Rule 17 CPC. Granted with a
direction that the copy of the same shall be supplied to the other side
at least 21 days prior to the next date of hearing.
Ld. Counsel for the newly added defendant submitted that a
direction may be given to the plaintiff to provide the complete set of
plaint and documents annexed to it so that the written statement on
her behalf may be filed. In response to this Ld. Counsel for the
plaintiff undertakes to supply the same with the application to amend
the plaint.
The Ld. Counsel for the defendant no.1 has submitted that an
application under Order VII Rule 11 CPC is also pending for
disposal, in which the defendant no.1 is seeking the rejection of the
plaint on the ground of mis joinder and non –joinder of the proper
and necessary parties, also on the ground that the plaintiff has not
paid the appropriate court fee for the relief of possession and on the
ground of the concealment of the material facts from this Court.
Per-contra the Ld. Counsel for the plaintiff opposed the
contentions of the defendant no.1 on the ground that since it is a
partition suit and being a co-parcener plaintiff is having the
symbolic/ constructive possession over the suit property and thus,
paying of ad-valorem court fee is not required.
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Heard on the application.
It is no longer
res-integra that in the suit for partition the
constructive possession ought to have been considered unless the
exclusion, ouster from the property is pleaded by the plaintiff. The
Hon’ble Supreme Court of India in the case of ‘
Neelavathi vs N.
Natarajan, AIR 1980 SC 691’, held that the question of court fees
must be considered in the light of the allegation made in the plaint
and its decision cannot be influenced either by the pleas in the
written statement or by the final decision of the suit on merits. It was
held that the general principle of law is that in the case of co-owners,
the possession of one is in law the possession of all unless ouster or
exclusion is proved.
The plaintiff in para -07 of the plaint has categorically
mentioned the fact of her symbolic possession over the suit property
and at this stage this Court is only consider the pleadings of the plaint
and it is evident from the pleadings that she is having the symbolic
possession and thus she is not liable to pay the ad-valorem court fees.
The para no.7 is reproduced here as under,
in verbatim
“7. That after the marriage, all the sisters i.e. All the
plaintiffs and defendant no-2 are living in their matrimonial
home. That after the marriage, the plaintiffs used to visit
their parental home i.e. the suit property and they have they
visiting terms in the suit property and all the plaintiffs are
having symbolic constructive possession in the suit
property.”
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This Court is further drawing the strength from another
judgment of the Hon’ble High Court of Delhi, recently in a judgment
titled as
Ajay Malik & Ors vs Prem Lata & Ors, 2025: DHC: 8260-
DB (para-9 and 10)’ reiterated the same legal position, which is
reproduced as under,
“9. With regard to the second submission, it is noticed that
this Bench in Anurag Sant (supra), after relying upon a Full
Bench decision of the Lahore High Court in Asa Ram v.
Jagan Nath4 and a Division Bench decision in Saroj Salkan
v. Capt. Sanjeev Singh & Ors, came to the conclusion that,
in a suit for partition, every cosharer is presumed to be in
constructive possession of the property, which is a statutory
presumption. Hence, ad valorem court fee is not payable.
The various judgments relied upon by the parties have
already been considered.
10. Keeping in view the aforesaid discussion, the Impugned
Order is set-aside and learned Single Judge (Roster Bench)
is requested to proceed with the case without insisting upon
the Plaintiffs paying the ad-valorem Court fee on the relief
of partition.”
(Emphasis supplied)
Furthermore, it is also well-settled that the objection of non-
joinder or mis-joinder of parties are beyond the realm of the Order
VII Rule 11 CPC as the same requires adjudication on facts as to
whether the present defendant had any role in the transaction,
whether any other person was a necessary or proper party, and
whether the suit suffers from non-joinder and it may only be decided
as per the evidence tendered by both the parties. Thus, these ques-
tions cannot be conclusively adjudicated at the threshold merely on
the basis of the averments in the application under Order VII Rule
11 CPC.
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To support the abovementioned view this Court is drawing
strength from the order passed by the Hon’ble High Court of Delhi,
in the case titled as
‘Silvermaple Healthcare Services Private Lim-
ited vs Dr. Tajinder Bhatti, 2022/ DHC/ 004573’ (para- 12 to 16),
which are produced as under, for ready reference,
“12. In the opinion of this Court not much cogitation is
required to answer the question as the same question came
up before this Court in Gajinder Pal Singh v. Mehtab Singh
and Others, 2001 SCC OnLine Del 1682. In the said case,
an application was filed on behalf of some of the
Defendants under Order VII Rule 11 CPC for rejection of
the plaint for non-joinder of necessary party. After
considering the submissions of both parties, the Court held
that the ground taken, namely, non-joinder of necessary
party is not covered by any of the Clauses (a) to (d) of Rule
11 of Order VII CPC. This was a matter which will have to
be considered at the appropriate stage after framing of
issues including the issue on 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. It was further held that even if it is ultimately
held that the party alleged to be a necessary party is found
to be one, the suit may not necessarily be dismissed without
giving an opportunity to the Plaintiff to amend the plaint by
adding the absent party. The application was dismissed by
holding that on the basis of Order VII Rule 11 CPC, the suit
could not be dismissed and the Court can always exercise
power under Order I Rule 10 and Order VI Rule 17 CPC,
as also held by the Guwahati High Court in Motoi Mia and
Others v. Abdul Haque and Others, 1983 SCC OnLine Gau
20.
13. This Court in Prem Prakash Dhawan v. Aman
Dhattarwal and Others, 2021 SCC OnLine Del 2547, while
dealing with a similar objection has held that ground of non-
joinder of parties is not available in an application under
Order VII Rule 11 CPC and to the same effect is the
decision of the Bombay High Court in Ramesh Shriram
Sule v. Dilipraj Niranjankumar Goenka and Another, 2008
SCC OnLine Bom 1118.
14. In the case of P. Govindasamy v. Manickam and Others,
2015 SCC OnLine Mad 13147, one of the questions
before the Division Bench of the Madras High Court was
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whether the objection of nonimpleadment of necessary
parties or proper parties is an issue to be determined in the
suit on the basis of evidence adduced by the parties at the
time of trial or was the same to be decided in an application
filed under Order VII Rule 11(a) and (d) CPC. After
analysing the provisions of Order I Rule 10 CPC as well as
various eventualities where a party may be considered as a
necessary party, the Court observed that learned Single
judge fell in error in rejecting the plaint under Order VII
Rule 11(d) CPC on the ground of non-joinder of a necessary
party.
15. In Civil Revision Petition No. 3026/2019 titled as Soyal
Infra and Another v. Smt. Rameez Bee and 5 Others, vide
order dated 09.03.2022, the Telangana High Court has
reiterated the position of law that non-joinder of necessary
parties is not a ground for rejection of plaint under Order
VII Rule 11 CPC. It was held that even if there is non-
joinder of necessary parties, Plaintiffs can be afforded
opportunity at appropriate stage of the suit by framing an
additional issue for impleading necessary parties, if
required. However, the same cannot be stretched to reject
the plaint without any opportunity for impleadment. If after
an opportunity being granted, Plaintiffs fail to act upon and
do not implead the necessary party, the suit can always be
ultimately dismissed, but only after framing of issues and
trial. Accordingly, the Court had rejected the contention that
non-joinder of parties can be a ground for rejection of the
plaint.
16. From a conspectus of the aforesaid judgments, it is
indisputably clear that plaint cannot be rejected at the
threshold for non-joinder of necessary party under Order
VII Rule 11(d) CPC…”
(Emphasis supplied)
Therefore, in view of the settled legal position it is
absolutely lucid that non-joinder of a necessary or proper party does
not constitute a ground for rejection of the plaint under Order VII
Rule 11 CPC.
Accordingly, the objection raised by the defendant on
the ground of non-joinder is untenable in law, and the same is hereby
rejected.
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The objection raised by the defendant that the plaintiff has
concealed material facts and is, therefore, not entitled to any relief
are also liable to be rejected for the reason that it is a well-established
that while adjudicating an application under Order VII Rule 11 CPC,
the Court is only required to examine the averments contained in the
plaint and the documents relied upon by the plaintiff, and cannot
travel beyond the same to examine the defence or embark upon
adjudication of disputed questions of fact.
The plea of suppression of material facts, by its very nature,
involves a judicial enquiry of facts including determination of what
facts were allegedly concealed, whether such facts were material to
the adjudication of the
lis, and whether such concealment was
deliberate and had a bearing on the relief claimed. Such an exercise
necessarily entails appreciation of evidence and assessment of rival
contentions, which is impermissible at the stage of deciding an
application under Order VII Rule 11 CPC.
If, the plaintiff has withheld any material facts or documents,
it is always open to the defendant to bring the same on record by
way of a written statement and substantiate the plea by leading
evidence. The legal consequences of any such alleged suppression,
including its impact on the entitlement of the plaintiff to relief
sought, can only be decided after examining the evidence of the
respective parties.
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Thus, the contention raised by the defendant clearly falls
outside the limited scope of Order VII Rule 11 CPC, which does
not contemplate a detailed enquiry into disputed factual issues.
Accordingly, the said objection of concealments of the facts by the
plaintiff is devoid of merit and is hereby rejected.
Be listed for further proceedings and filing of the application
under Order VI Rule 17 CPC (if any) by the plaintiff and on the
application of the defendant no.1, filed under Section 151 CPC on
10.07.2026.
The date has been given as per the convenience of Ld.
Counsel for both the parties.
(Sandeep Kumar Sharma)
District Judge-04, East District,
Karkardooma Courts, Delhi
17.04.2026
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