Order 8

Order Details: COPY OF ORDER
Pdf Text: 18 Civ Suit 304/25
INDUS TOWERS LTD. Vs. BEERMATI
07.03.2026
Order on application u/O VII Rule 11 Code of Civil Procedure,
1908.
1. Vide this order, I shall dispose of the application moved under Order VII
Rule 11 Code of Civil Procedure, 1908 (hereinafter ‘CPC’) by the
defendant. I have rejected the instant application for reasons mentioned
hereinafter:-
Submissions of applicant/defendant:-
2. The applicant has pointed out two reasons that allegedly warrant rejection
of plaint.
3. First, the plaintiff has not impleaded MCD as a party to the suit, which
allegedly is a necessary party because the equipment i.e.
telecommunication goods has been sealed by MCD, the same is under the
constructive custody of MCD and the defendant has no authority over the
same.
4. Second, the suit has been filed without any cause of action because the
agreement between the plaintiff and defendant has not been terminated and
the same is subsisting because the plaintiff company is continuously using
the premises of the defendant.
Submissions of Plaintiff/respondent:-
5. On first ground, plaintiff has responded that MCD is not a necessary party.
It is also argued that non-joinder of a party is not a ground to reject the
plaint under Order 7 Rule 11 CPC.
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6. On second ground, plaintiff argued that there is a cause of action due to
alleged breach of contract between the plaintiff and defendant. Further, the
plaintiff has right to claim the property of the plaintiff.
Issues:-
7. Two issues emerge out of the instant application:-
First, whether MCD is a necessary party to a suit and whether non-
joinder(s) of MCD merits rejection under Order 7 Rule 11 CPC?
Second, whether plaint is liable to be rejected for want of cause of action?
Law:-
8. The first issue necessitates the determination of distinction between a
necessary party and a proper party.
9. The law is settled on this aspect. Necessary parties are those persons in
whose absence no decree can be passed by the court or those persons
against whom there is a right to some relief in respect of the controversy
involved in the proceedings; and that proper parties are those whose
presence before the court would be necessary in order to enable the court
effectually and completely to adjudicate upon and settle all the questions
involved in the suit although no relief in the suit was claimed against such
person.1
10.Further, if a plaintiff makes an application for impleading a person as a
defendant on the ground that he is a necessary party, the court may implead
him having regard to the provisions of Rules 9 and 10(2) of Order 1. If the
1 Mumbai International Airport (P) Ltd. v. Regency Convention Centre & Hotels (P) Ltd.,
(2010) 7 SCC 417
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claim against such a person is barred by limitation, it may refuse to add him
as a party and even dismiss the suit for non-joinder of a necessary party.2
11.Now, the law regarding rejection of plaint for non-impleadment of a party
must be understood by glancing at Order VII Rule 11 (a) and (d), CPC.
Inter alia Order 7 Rule 11(a) and (d) states thus: -
The plaint shall be rejected in the following cases:-
(a) where it does not disclose a cause of action;
……………..
(d) where the suit appears from the statement in the plaint to be barred by
any law;
……………
12.In a case where the plaint suffers from the defect of misjoinder of parties or
misjoinder of causes of action either in terms of Order 1 Rule 1 and Order 1
Rule 3 on the one hand, or Order 2 Rule 3 on the other, the Code itself
indicates that the perceived defect does not make the suit one barred by law
or liable to rejection. The scheme of Order 1 and Order 2 clearly shows that
the prescriptions therein are in the realm of procedure and not in the realm
of substantive law or rights. That the Code considers objections regarding
the frame of suit or joinder of parties only as procedural, is further clear
from Section 99 of the Code which specifically provides that no decree
shall be reversed in appeal on account of any misjoinder of parties or
causes of action or non-joinder of parties unless a court finds that the non-
joinder is of a necessary party. This is on the same principle as of Section
21 of the Code which shows that even an objection to territorial jurisdiction
2 Supra
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of the court in which the suit is instituted, could not be raised successfully
for the first time in an appeal against the decree unless the appellant is also
able to show consequent failure of justice. The Suits Valuation Act similarly
indicates that absence of pecuniary jurisdiction in the court that tried the
cause without objection also stands on the same footing. Therefore, by no
stretch of imagination, can a suit bad for misjoinder of parties or misjoinder
of causes of action be held to be barred by any law within the meaning of
Order 7 Rule 11(d) of the Code.3
Analysis:-
13.Let us examine the status of MCD in the light of the law stated above.
Admittedly, the plaintiff seeks relief against the defendant only. The relief
is sought on the basis of breach of contract allegedly committed by the
defendant. Plaintiff seeks to injunct defendant from creating hindrance or
obstruction to the plaintiff or his representatives in accessing the entry to
the telecommunication site. Plaintiff does not challenge the sealing order of
MCD or the bye-laws by which the sealing order was passed by MCD.
Thus, it is clear that the relief sought by plaintiff is to injunct the defendant
which makes MCD at most a proper party, certainly not a necessary party to
the suit.
14.Having cleared air over the status of MCD as a party, the question remains
whether non-impleadment of a party merits rejection under Order 7 Rule 11
CPC.
15.It can be gleaned from position of law explained above that for a plaint to
be rejected under Order 7 Rule 11 CPC the misjoinder or non-joinder of
parties does not create any road-block for the suit to proceed.
3 Prem Lala Nahata v. Chandi Prasad Sikaria, (2007) 2 SCC 551
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16.Thus, the first ground taken by the applicant deserves rejection.
Second, the applicant argues that there is no cause of action.
Law:-
17.In the light of factual expose concerning rejection of plaint, it is beneficial
to see where the law stands.
18.The underlying object of Order VII Rule 11(a) CPC is that if no cause of
action is disclosed in the plaint or the suit is barred by any law under Rule
11(d), Court would not permit the Plaintiff to unnecessarily protract the
proceedings in the suit and in such a case, it would be necessary to put an
end to the sham litigation, so that further judicial time is not wasted.4
19.While exercising power under Order VII Rule 11 CPC the only test to
ascertain if the plaint discloses a cause of action and/or is not barred by law,
is to examine the plaint and the plaint alone in conjunction with the
documents filed with the plaint.5
20.It is not permissible to cull out a sentence or passage from the plaint and
read the same in isolation. It is the substance and not merely the form
which has to be looked into. The plaint must be construed as it stands,
without addition or subtraction of words and only if on a meaningful
reading it is found that the suit is manifestly vexatious and meritless, the
power to reject the plaint must be exercised.6
Analysis:-
4 Dahiben v. Arvindbhai Kalyanji Bhanusali (Gajra) Dead through Legal
Representatives, (2020) 7 SCC 366
5 Liverpool & London S.P. & I Association Ltd. v. M.V. Sea Success I, (2004) 9 SCC 512.
6 Hardesh Ores (P) Ltd. v. Hede & Co., (2007) 5 SCC 614
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21.The position of law being thus, let us examine whether the application
under consideration withstands the legal scrutiny.
22.As per the applicant, the contract is subsisting whereas the plaintiff has
averred that the it is the defendant who is in breach of the contract.
23.For the purposes of Order 7 Rule 11 CPC only the averments in the plaints
are germane. As per the plaint, there was a breach of contract by the
defendant and relief pertains to injuncting the defendants from creating
hindrance to the plaintiff to access and remove the telecommunications
apparatus of plaintiff placed at the premises of the defendant. This right
purportedly emanates from existence of jural relationship between the
plaintiff and defendant. Thus, the cause of action is manifest from the prima
facie reading of the plaint which protects the plaint from rigors of Order 7
Rule 11 CPC.
Conclusion:-
24.In the light of the foregoing discussion of law and facts, the plaint
apparently discloses a triable cause of action. Further, non-joinder of a
proper party does not attract the rigors of Order VII Rule 11 CPC. Ergo, the
application moved by defendant under Order VII Rule 11 CPC is rejected
without costs.
Pranat Kumar Joshi
ACJ-cum-ARC-cum-CCJ
North-East/Karkardooma Courts,
Delhi/07.03.2026
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