Find a Lawyer

Suit No. 302 of 1974, decided on 27th June 1975.

O. VII, r. 11 & O. X, r. 2-Party. wrong impleading of-Code contemplates impleading of a defendant as a party not only against whom there is a right ,to any relief but also a defendant whose :presence before Court may be necessary to enable Court to effectual ly and completely adjudicate upon and settle all questions involved ,Remedy for party wrongly impleaded as defendant-One under O. X, r. 2 to have his name struck off-Court may not, however, grant such request notwithstanding suit being barred against such defendant .or no cause of action being alleged against him.-[Pleadings).

I. A. Lari for Plaintiff.

Z. C. Velliani for Defendant No. 6.

Mansoorul Arfin for Defendants Nos. 4 and 7.

Mansoor Ahmad Khan for Defendants Nos. 5 and 8.

Date of hearing : 12th May 1975.

This is an application by one of the several defendants under Order VII, rule 11, C. P. C. and the prayer is that the plaint -be rejected against the defendant/applicant for it does not disclose any cause of action and/or that the action against him is barred by limitation.

2. Mr. I. A. Lari, the learned counsel for the plaintiffs opposed this application on the ground that the law does not envisage partial rejection .of the plaint against one of the several defendants and the remedy if any, of a defendant who has been wrongly impleaded as a party is to have his name struck off under Order X, rule 2, C. P. C. Prima facie, Order VII, rule 11, C. P. C. contemplates rejection of the plaint as a whole so as to dispose of the entire suit though not resulting in its dismissal. What is more important, however, is that the Code contemplates as a party defendant not only a person against whom there is a right to any relief but also defendant whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the: questions involved in the suit. In other words the law contemplates a defend-'; ant who may only be a pro forma defendant and against whom no relief is sought but his presence is necessary to effectively and completely adjudicate upon the questions involved in a suit. Such a pro forma defendant if allowed to have recourse to Order VII, rule 11, C. P. C. must necessarily succeed for the plaint will not disclose against him any cause of action, thus making it, redundant the power of the Court to implead as a defendant against whom no relief is sought but whose presence is required to effectively, adjudicate upon all the questions involved between the plaintiff and the other defendants in the suit. This result, however, can only be avoided if, Order VII, rule 11, C. P. C. is given its plain prima facie meaning, namely, that its application must result in the rejection of the plaint and not in rejection of part of the plaint against one of the defendants. Therefore, the remedy for a party wrongly impleaded as a defendant is one under rule 2, Order X, C. P. C. to have his name struck off, and the Court may not grant such a request notwithstanding the suit being barred against such a defendant or no cause of action is alleged against him.

3. On behalf of the defendant/applicant my attention was invited to a decision of my learned brother Ghulam Rasool Shaikh, J. in Suit No. 230 of 1973 wherein he rejected the plaint partly against one of the defendants only but in that case the maintainability of such an application was not questioned.

4. The result is that this application is dismissed but in the circumstances there will be no order as to cost.

Application dismissed

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.