IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 2725 of 2011 (M/S) Ashwini Kumar Vaishnava … Petitioner Versus Ganesh Chandra Pandey & another … Respondents Hon’ble Tarun Agarwala, J. Heard Mr. M.C. Pandey, the learned Senior Advocate assisted by Mr. Devesh Upreti, the learned counsel for the petitioner. 2. The plaintiff filed a suit against three defendants, namely, against the father and his two sons. The defendants appeared and are contesting the matter and have filed the written statement as well as the counter claim. During the pendency of the suit, the defendant No. 1 i.e. the father had died and the plaintiff, consequently, moved an application for deleting the name of defendant No. 1 and further prayed that defendant No. 2 and 3 be arrayed as defendant No. 1 and 2. This application was resisted by the defendant Nos. 2 and 3 alleging that defendant No. 1 had left behind other heirs, who should be impleaded in addition to defendant Nos. 2 and 3. The plaintiff’s application was allowed, by the impugned order and the name of the defendant No. 1 was deleted and defendant No. 2 and 3 were arrayed as defendant Nos. 1 and 2 respectively. The defendant, being aggrieved, filed a revision, which was dismissed and consequently, the present writ petition has been filed. 3. Having heard the learned counsel for the petitioner, the Court is of the opinion that it is open to the plaintiff to choose his opponent and if necessary parties are 2 not impleaded, the suit would be dismissed for non-joinder of necessary party, if an issue is framed to that effect. Consequently, the petitioner cannot insist that every heir of the deceased defendant No. 1 should be impleaded as necessary parties. 4. In so far as the counter claim is concerned, filed by defendant Nos. 2 and 3, the said counter claim is in fact treated as a separate suit, but in order to avoid multiplicity of suit, a counter claim can be filed in a pending suit. It would be open to the defendant to implead the other heirs of defendant No. 1, as necessary parties in the counter claim, for which purpose an application should be filed. 5. With the aforesaid observation, the writ petition is dismissed. (Tarun Agarwala, J.) 28.12.2011 Aswal