O R D E R

VIPIN SANGHI, J.

I.A. No. 13629/2011 (U/O 7 rule 11(a) read with Section 151 CPC by the defendant)

I.A. No. 13630/2011 (U/O 6 Rule 16 read with Section 151 CPC by the defendant)

I.A. No. 14479/2011(U/O 7 Rule 11 and Section 151 CPC by the defendant)

I.A. No. 8404/2013(U/O 6 Rule 17 CPC read with Section 151 CPC for amendment of plaint by the plaintiff)

1. By this common order, I proceed to dispose of the aforesaid four applications.

2. The plaintiff has preferred the present suit to claim damages of Rs. 1 crore and for mandatory injunction. Initially, there were two defendants in the suit – defendant No. 1 being Asif Nazir Mir, and defendant No. 2 being Mrs. Shaziya Shaw. Defendant No. 2 was the wife of the plaintiff at the time of filing of the suit. In a nutshell, the case of the plaintiff -as originally pleaded in the plaint, was that defendant No. 1 was having an adulterous relationship with his wife-defendant No. 2. In the plaint, the plaintiff goes on to narrate as to how he came to learn of it; how others came to learn of it; the conduct of the two defendants, and; the actions alleged to have been taken by the two defendants in collusion with each other with a view to harm the good name and reputation of the plaintiff, and to induce divorce between the plaintiff and defendant No. 2. The plaintiff pleaded that defendant Nos. 1 and 2 colluded to post false allegations against the plaintiff - of his being in an illicit relationship with the wife of defendant No. 1. These allegations were posted on the Facebook page of the wife of defendant No. 1, Mrs. Shazia Bakshi. According to the plaintiff, the wife of defendant No. 1, Mrs. Shazia Bakshi was in touch with the plaintiff so as to keep the plaintiff informed of the conduct of the two defendants.

3. After the filing of the suit and upon issuance of summons in the suit, the plaintiff moved I.A. No. 10296/2010 under Order 23 Rule 1 CPC to give up his claim against defendant No. 2 – then his wife, Mrs. Shazia Shaw. Along with the application, the plaintiff filed the agreement/settlement deed dated 17.06.2010 entered into between the plaintiff and defendant No. 2.

This application was allowed on 06.08.2010.

4. Upon service of defendant No. 1, he has preferred the aforesaid two applications under Order 7 Rule 11 CPC. In the first application i.e. I.A. No. 13629/2011, the submission of defendant no. 1 is that since the plaintiff has given up his claim against defendant No. 2, and the cause of action against both the defendants is the same, i.e. the alleged act of adultery between the two defendants, the plaintiff cannot proceed against defendant No. 2. The submission of the defendant is that in the absence of defendant No. 2, who has been voluntarily dropped from the array of defendants by the plaintiff as a consequence of withdrawal of the suit against her unconditionally, the allegations of adultery cannot be examined by this Court. According to the defendant, the defendant No. 2 is a necessary party- since the examination of the said issue would necessarily impinge on the conduct, name and reputation of the erstwhile defendant No. 2. Therefore, even if no relief is claimed against defendant No. 2 -who already stands deleted, in her absence, the aspect of adultery cannot be examined by this Court and the suit cannot proceed. The defendant also seeks to argue that the postings on the Facebook page of Mrs. Shazia Bakshi do not make any allegation against the plaintiff, since his name is not mentioned.

5. The second application under Order 7 Rule 11 CPC i.e. I.A. No. 14479/2011, has been preferred by the defendant with the plea that the claim of damages, as well as for mandatory injunction, arise out of the alleged libelous posting, as aforesaid, on the webpage of Mrs. Shazia Bakshi for which, inter alia, the defendant is allegedly responsible. The submission is that the said publication took place, allegedly, on 26/27.10.2008. Reference is made to the averments in the plaint, ac