B.K.Singh, J. - (1.) I have heard the learned counsel of the petitioner. The learned counsel of the petitioner has submitted that when the defendant -petitioner has pleaded that he is neither partner of the firm nor has anything to do in the business of the firm in the premises in dispute then the question of any judgment and decree being passed against him does not arise. The learned counsel submits that in such a case the lower court should have ordered petitioner's deletion from the array of the parties. As such the impugned orders are wholly against law and deserve to be quashed. I have considered the above submissions of the learned counsel. In my opinion, if such a pleading has been made by the petitioner then he need not worry about the judgment and decree that may be passed. It is for the plaintiff to pursue the case against proper and necessary party. In case the plaintiff does not pursue the remedy against the proper and necessary party then in that case the plaintiff's decree would be a paper transaction only. That being the legal position further participation of the petitioner in the proceedings and insistence to make an issue on the point is legally of no consequence. The legal position is that it is the plaintiff who should be conscious of the fate of the decree that is passed against an improper or unnecessary party and pursue his remedy/relief against proper and necessary party.
(2.) THE learned counsel of the petitioner states that he is apprehensive that in case the issue is not struck and it is not decided as to whether the petitioner is proper or necessary party then if the court passes a decree it may also saddle cost on the petitioner and the recovery of rent also. I have considered the said point also. The court has presently held that the plea taken by the defendant -petitioner will be decided alongwith the suit after evidence is led by both the parties. It is expected that when this will be done then the court will also decide as to whether the petitioner is proper or necessary party and if it is not so then no decree of arrears of rent and damages could be passed against the petitioner and no cost would also be imposed. With this observation the writ petition is dismissed.;