The objection of non-joinder of necessary parties should be taken at the earliest possible opportunity and any such objection not so taken shall be deemed to have been waived.

1. Rule, with the consent of the parties made returnable forthwith and heard.

2. This petition takes exception to the Order dated 28-9-2006 passed by the learned Civil Judge, Senior Division, Shahada by which order the application filed by the Respondents herein came to be allowed and the learned Judge held that an additional issue in respect of non joinder of necessary parties is required to be framed.

3. The petitioner herein is the original plaintiff in Special Civil Suit No. 48 of 2003 filed by him in the Court of Civil Judge, Senior Division, Shahada. The said suit has been filed for declaration and partition of one half of gat No.10 of village Talwadi, taluka Shahada, district Nandurbar. The said gat No.10 admeasures 2 H. 51 R. and it is the case of the plaintiff that he is in possession of half portion on the western side and he has been cultivating the same. The plaintiff, therefore, prayed that partition should be effected and possession should be handed over to him on the said basis. The plaintiff is the heir of one Bonda whereas the defendants are the heirs of Giran and the children of Gajya, Kalya and Bilji. The common ancestor of the plaintiff and the defendants is one Amrya.

4. In the said suit, the defendants filed their written statement and denied the claim of the plaintiff. Pertinently, no preliminary objection was raised as regards the maintainability of the suit on account of non-joinder of parties. On the basis of the pleadings that were on record, as many as 7 issues were framed. The parties went to trial on the said issue and the evidence on behalf of the plaintiff was completed in or about August 2006. It appears that on 20-9-2006, an application was made under the signature of the defendant No.1 on behalf of the defendants that one Wedibai who is the mother of the plaintiff and defendant No.1 and one Supdibai who is the sister of plaintiff and also the sister of defendant No.1 were not made parties to the suit and, therefore, the said suit was bad for non-joinder of the necessary parties. The said Application, Exhibit 18, came to be allowed and by the impugned order dated 28-9-2006, the learned Civil Judge, Senior Division held that the additional issue as regards non-joinder of necessary parties is required to be framed in the suit. As indicated above, it is aggrieved by the said order dated 20-9-2006 that the petitioner has approached this Court by way of above petition.

5. On behalf of the petitioner, it is contended by Shri J. R. Shah, the learned Counsel appearing for the petitioner that there is absolutely no foundation in the written statement for the said additional issue to be framed. According to Shri Shah, the case made out in the application, Exhibit 18, is not part of the written statement and, therefore, a new case is sought to be introduced without amending the written statement. Shri Shah further submitted that Order I Rule 13 of the C.P.Code postulates within what period the said issue of non-joinder of necessary parties could be raised. According to Shri Shah, the instant case does not satisfy the mandate of Order I Rule 13 and, therefore, having not raised the said preliminary issue in respect of non-joinder of a necessary party, the defendants are deemed to have waived the said issue.

6. Per contra, it is submitted by the learned Counsel for the Respondents Mrs. Kazi that the said issue is required to be framed for a complete adjudication of the issues raised in the suit. The learned Counsel submitted that there is no dispute that said Wedibai is the mother of the plaintiff and said Supdibai is the sister of plaintiff and, therefore, in the suit of the nature filed by the plaintiff for partition they are necessary parties to the said suit. The learned Counsel, therefore, s