Surendra Kumar JaIn and anr. Vs. Santosh Kumar JaIn and ors. - Court Judgment

Excerpt:
the case examined the maintainability of a suit filed by one coparcener against rest of the coparceners and the karta of a joint family property and debated on the non-joinder of necessary and proper parties under order 1, rule 10 of the civil procedure code, 1908 - the court directed that the issue of non-joinder of parties should be heard along with other issues - labour & services disability pension: [vikramajit sen, sanjiv khanna & s.l.bhayana,jj] army act (46 of 1950), section 192 & pension regulations for the army (1961), regulation. 173 claimant was on casual leave sustained injury which contributed to invalidation for military service claim for disability pension held, to claim disability pension by military personnel it requires to be established that the injury or fatality suffered by the concerned claimant bears a causal connection with military service. secondly, if this obligation exists so far as discharge from the armed force on the opinion of a medical board the obligation and responsibility a fortiori exists so far as injuries and fatalities suffered during casual leave are concerned. thirdly, as a natural corollary it is irrelevant whether the concerned personnel was on causal or annual leave at the time or at the place when and where the incident transpired. this is so because it is the causal connection which alone is relevant. fourthly, since travel to and fro the place of posting may not appear to everyone as an incident of military service, a specific provision has been incorporated in the pension regulations to bring such travel within the entitlement for disability pension if an injury is sustained in this duration. fifthly, it cannot be said that each and every injury sustained while availing of casual leave would entitle the victim to claim disability pension. sixthly, provisions treating casual leave as on duty would be relevant for deciding questions pertaining to pay or to the right of the authorities to curtail or cancel the leave. lastly, injury or death resulting from an activity not connected with military service would not justify and sustain a claim for disability pension. this is so regardless f whether the injury or death has occurred at the place of posting or during working hours. this is because attributability to military service is a factor which is required to be established. - that the suit is bad for non joinder of necessary & proper party inasmuch as the defendant no. & the fact that no partition of the suit property has been made, the entire suit is bad for non-joinder of necessary & proper party. 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. 2 that the suit is bad for non-joinder of proper and necessary party cannot be legally disallowed. whether suit is bad for deletion/non-joinder of necessary and proper party to the suit ? if so, to what effect ?' (11) this issue is to be decided along with other issues framed in the suit.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 property 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 ?'--- *** ---(11) this issue is to be decided along with other issues framed in the suit.