VIMADALAL, J. -
(1.) IN the midst of the examination -in -chief of the plaintiff, Mr. H.K. Shah who appears for defendants Nos. 1, 2, 3 and 5 applied for amendment of the Written Statement as per draft handed in by him, whereby he sought to raise the plea that the suit is bad on the ground of the non -joinder of the other partners, of the firm of M/s. Shankar Gunaji Bros., as well as of the landlord of the three industrial Galas, all of whom 'are necessary and/or proper parties.' Mr. H.K. Shah has in the first instance submitted that para. 3 of the Written Statement of defendants Nos. 1, 2 and 5, as it stands, has been worded erroneously due to the oversight of the learned Counsel who drafted it. It may be pointed out that in the said para. 3 the averment which has been made is that the plaintiff is not entitled to the reliefs claimed by him in the absence of necessary and proper averments in the plaint. I have not the least doubt that the contention of Mr. H.K. Shah that what the learned Counsel really intended to plead was that the plaintiff was not entitled to the relief claimed in the absence of proper parties is entirely unfounded. I do not believe that any such oversight could possibly have occurred, for the simple reason that it would not be possible to fit in the words 'in the plaint' in the context of necessary and proper parties. Moreover, the averment, in the form in which it appears in para. 3 of the Written Statement, is not unknown in pleadings in the mofussil and is in the usual form in which it is to be found in written statements filed in mofussil Courts. I, therefore, reject Mr. H.K. Shah's contention that the averment an it appears in para. 3 of the Written Statement of defendants Nos. 1, 2 and 5 is due to oversight on the part of the learned Counsel who drafted the Written Statement.
(2.) I would not perhaps have been averse to the granting of the amendment in the form in which it appears in the draft handed in by Mr. H.K. Shah but, I am, afraid, in view of the provisions of Order I, Rule 13 of the Code of Civil Procedure it is not open to me to grant such an amendment, once issues have been framed by me, as they already have been in the present case. Order I, Rule 13, Civil Procedure Code enacts in mandatory terms, not only that objections on the ground of non -joinder must be taken at the earliest possible opportunity, but that they must be taken 'in all cases where issues are settled at or before such settlement, unless the ground of objection has arisen subsequently thereto.' It is nobody's ease in the present suit that the ground of objection has arisen subsequent to the framing of issues. It is true that in the draft issues that were handed in by Mr. H.K. Shah after pleadings were read, he did seek to raise an issue on the ground of non -joinder of necessary parties, but that does not, in my opinion, get rid of the bar of Order I, Rule 13 of the Code of Civil Procedure. In the absence of the necessary averment in the Written Statement, such an issue could not be raised and was, therefore, struck out by me from the draft submitted by Mr. H.K. Shah. A party cannot surmount the bar of Order I, Rule 13 of the Civil Procedure Code merely by inserting an issue in the draft issues submitted by him without the necessary averment being there in the pleading to support that issue. When Order I, Rule 13 refers to the raising of an objection on the ground of non -joinder or misjoinder of parties, in my opinion, it clearly refers to such objection being raised either by amendment of the pleadings at the proper time or by framing an issue in those cases in which the necessary averments are to be found in the pleading of the party concerned. The fact that such an issue was sought by Mr. H.K. Shah in the draft issues submitted by him cannot therefore be: of any avail to him for the purpose of getting over the bar of Order I, Rule 13 of the Code of Civil Procedure.
Mr. H.K. Shah next sought to contend that Order I, Rule 13 of the Code has no application to a case where a necessary party is not before the Court, as no effective decree could be passed in the absence of such a party. In support of that contention, Mr. Shah relied upon the decision of a Full Bench of the Assam High Court in the case of Chandra Mohan v. Union of India AIR Ass 193 . in the judgment in which the proposition as formulated by Mr. H.K. Shah undoubtedly appears (para. 7). I am afraid, I cannot however accept the view taken by the Assam High Court in Chandra Mohan's case for the simple reason that an objection on the ground of non -joinder would be raised only in cases in which it would be fatal to the maintainability of the suit. If a party who has not been joined in a suit is merely a proper party to the suit as distinguished from a necessary party, it would be futile to raise any objection of the nature contemplated by Order I, Rule 13 of the Code of Civil Procedure. Such an objection would never be raised because, in view of the provisions of Order I, Rule 9 it would not be fatal and the Court could always proceed with the suit in regard to the rights and interests of the parties actually before it. It is true that under Order I, Rule 10(2) of the Code of Civil Procedure an application for amendment by the addition of a party may be made whether the party sought to be joined be a necessary party, or a proper party to the suit. In my opinion, however, it is not possible to conceive how Order I, Rule 13 of the Civil Procedure Code could possibly apply to the non -joinder of a party who is merely a proper party to the suit as distinguished from a necessary party thereto. With respect to the learned Judges of the Assam High Court who decided Chandra Mohan's case cited above, it is in respect of the non -joinder of necessary parties alone that Order I, Rule 13 could possibly come into play, and I am therefore unable to agree with the view taken by them in the said case. If the Court is unable to pass a decree by reason of the fact of the non -joinder of a necessary party who ought to have been joined, the Court may add such party suo motu, or may decline to pass the decree prayed for by the plaintiff, but that does not necessarily lead to the conclusion that a party could raise the plea of non -joinder at any stage subsequent to the stages contemplated by Order I, Rule 13 of the Code of Civil Procedure. I have, therefore, come to the conclusion that, in view of the mandatory terms of Order I, Rule 18, Civil Procedure Code, I have no power to grant the amendment sought by Mr. H.K. Shah and I decline to grant the same.;