1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.7254 OF 2008. Pravin Pandurang Wakharkar and others ... Petitioners. Versus Dr.Sau.Gauri Pravin Wakharkar ... Respondent. ... Mr.M.M.Bhokarikar, advocate for the petitioners. Mr.J.R.Shaikh, advocate for the Respondent. ... CORAM : V.R.KINGAONKAR,J. Date : 25.01.2010. PER COURT 1. By this petition, the petitioners challenge order rendered by learned Civil Judge, whereby their application for deleting their names from array of defendants came to be dismissed. The petitioners are original defendants Nos.2 to 6. They submitted that they were not the necessary parties to the suit filed 2 by the Respondent No.1. 2. The Respondent No.1 filed the suit (Special Civil Suit No.134/2004) seeking separate maintenance allowance from her husband, who is original defendant No.1 in the suit and other defendants who are present petitioners herein. The petitioners appeared in the suit in 2004 and filed their written statement. When the trial had commenced, they filed application in 2002 seeking their discharge from the array of defendants. The contention of the petitioners was that they can not be mulcted with liability to pay maintenance which can be claimed only against the Respondent i.e. the original defendant No.1. Consequently, for want of legal liability they sought deletion of their names from the array of defendants. The trial Court rejected their application. 3. Heard counsel. 4. Mr.Bhokarikar, learned advocate would submit that the petitioners can not be termed as 3 necessary parties. He would submit that their presence was not necessary for final and effectual adjudication in the suit. Consequently, he contended that discharge of the petitioners from the litigation ought to have been ordered by the trial Court. 5. At this juncture, it is important to notice that the pleadings in the suit go to show that the Respondent No.1 (wife) categorically alleged that the petitioners and her husband are members of a joint Hindu family. She categorically stated in the pleadings that the properties of the petitioners and her husband are joint and all of them are co-sharers. What emerges from the subsequent development which occurred in the suit is that the Respondent No.1 filed an application seeking medical opinion regarding mental health of the defendant No.1 i.e. her husband. The petitioners probably want to withdraw themselves from the litigation because if it is proved that husband of the Respondent No.1 (plaintiff) is not mentally capable then perhaps they can be excused. It is 4 stated by Mr.Bhokarikar, that a report is already received and he is found to be mentally sound. Be that may as it is, when it is prima facie clear that the petitioners and husband of the Respondent No.1 are joint in mess and property, the ultimate result in respect of executability of the maintenance order is likely to affect their rights. They may not be necessary parties to the suit. Still, however, they are the proper parties. One can not be oblivious of the distinction between "necessary parties" and "proper parties". Considering the fact that the petitioners are proper parties, the rejection of the application filed by them can not be faulted with. There is no merit in the petition. Dismissed. No costs. (V.R.KINGAONKAR,J.) asp/office/wp725408