JUDGMENT Kamlesh Sharma, J.:- Appellants and proforma respondents 2 to 4 are the defendants, whereas, respondent No.l is the plaintiff and they will be referred to as such in this judgment. The defendants, who are aggrieved by the judgment dated 23.3.200J passed by Additional District Judge, Shimla, whereby the appeal of the plaintiff and Cross Objections of the defendants were allowed and the decree and judgment dated ,29.11.1999 of Sub Judge 1st Class, Theog District Shimla was set aside and the case was remanded for fresh trial after affording an opportunity to the plaintiff to implead all the necessary parties in the suit. 2. The brief facts of the case are that the plaintiff had filed a suit for permanent prohibitory injunction against the defendants restraining them from interfering with the water supply from the water source situated adjacent to the boundary of khasra Nos.161 and 163 in Mauza Guri, Pargana Parvati, Tehsil Theog, District Shimla. As per the plaintiff, there exists a JHOUR in khasra No. 162, which is fed by five water sources situate nearby the boundary of khasra Nos. 161 and 163 wherefrom he has been drawing water since time immemorial. His complaint was that defendants 1 and 6 who own land in khasra No.269/J I and 161 adjacent to the land of the plaintiff tried to interfere with the supply of the water from sad sources to the land of the plaintiff which gave him cause of action to file the suit. 3. In their separate written statement defendants 1 to 6 contested the suit and raised preliminary objections, inter alia, that the suit is bad for non-joinder of necessary parties, as khasra No. 161 is owned and possessed by defendant No.6 along with Ramesh Kumar, Varinder Kumar, Miss Kanta Devi, Nisha Devi, Geeta Devi and Smt. Savitri Devi, who have not been impleaded as part defendants. It was also alleged that State of Himachal Pradesh is one of the necessary parties as khasra No. 163 is owned by it. Besides denying the claim of the plaintiff as alleged by him defendants 1 to 6 also preferred counter claim seeking permanent prohibitory injunction against the plaintiff restraining him from interfering in the land comprised in khasra No. 161 and converting the user of the water source situated in khasra No.269/11, which is exclusively used by them. 4. Besides denying the claim of the plaintiff as alleged by him defendants 1 to 6 also preferred counter claim seeking permanent prohibitory injunction against the plaintiff restraining him from interfering in the land comprised in khasra No. 161 and converting the user of the water source situated in khasra No.269/11, which is exclusively used by them. 4. Defendants 7 to 12 in their separate written statement also raised preliminary objection that the suit is bad for non-joinder of State of Himachal Pradesh, which necessary party is being owner of khasra No. 163. They claimed that defendants and other inhabitants of revenue village Guri have a right to draw water from the sources in question and have denied the exclusive right of the plaintiff as claimed by him. 5. On the pleadings of the parties, issues were framed and issued No.4 was, "whether the suit is bad for non-joinder of necessary parties? OPD", which was answered in affirmative by the trial Court and the suit was held bad for non-joinder of necessary parties. On the basis of the evidence on record, more specifically, the statement of the plaintiff the trial Court has held that the plaintiff cannot claim easementary rights to draw water from the water sources situated either in khasra No. 163 or near its boundary without impleading its owner, the State of Himachal Pradesh as party defendant. Similarly without impleading the co-owners of khasra No.269/11 who were even named in the written statement of defendants 1 to 6 the suit of the plaintiff was not maintainable. On merit, the claim of the plaintiff was dismissed on the ground that he has failed to establish the location of the water sources from which he has easementary right to draw the water. The counter claim of the defendants was also rejected holding that they have failed to establish how many sources are situated in their lands and which of them are earmarked for being need by the public. 6. Feeling aggrieved the plaintiff filed appeal to which defendants also filed Cross Objections which have been allowed by the impugned order on the sole ground that on coming to the conclusion that suit was bad for non-joinder of necessary parties the trial Court instead of dismissing the suit on this count was required to afford an opportunity to the plaintiff to implead necessary parties. In fact the suit was no dismissed for non-joinder of necessary parties only but also on merit. Therefore, in this appeal the question arises whether for non-joinder of necessary parties the suit is required to be dismissed or an opportunity is required to be given to the plaintiff to implead the necessary parties? 7. Learned counsel for the defendants has argued that in view of proviso to Order 1 Rule 9 C.P.C. the suit for want of necessary parties must fail and there is no question of giving an opportunity to the plaintiff to implead said necessary parties when despite preliminary objection he did not care to implead State of Himachal Pradesh and other co-owners of the land over which the water source in question are situate as party-defendants. 8. On the other hand, learned counsel for the plaintiff has urged that in view of Order 1 Rule 10 (2) C.P.C. the court is empowered to strike out or make addition of parties, as such, the Additional District Judge is within his rights to direct the Sub Judge to give an opportunity to the plaintiff to implead the necessary parties. Both the learned counsel have referred to the case law in support of their respective submissions. 9. In order to appreciate their respective contentions we will refer to Order 1 Rule 9 and Order 1 Rule 10(2) C.P.C. and the case law. Both the learned counsel have referred to the case law in support of their respective submissions. 9. In order to appreciate their respective contentions we will refer to Order 1 Rule 9 and Order 1 Rule 10(2) C.P.C. and the case law. Order 1 Rule 9 is: "Misjoinder and non-joinder.- No suit shall be defeated by reasons of the misjoinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interest of the parties before it: Provided that nothing in this rule shall apply to non-joinder of a necessary party." Order 1 Rule 10(2) is: "Court may strike out or add parties.- The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added." 10. In State of Punjab v. Nathu Ram AIR 1962 SC 89, while interpreting Order 1 Rule 9 C.P.C. before addition or proviso, the learned Judges have held in paragraph 5 that if the Court can deal with the matter in controversy so far as regards the rights and interests of the appellant and the respondents other than the deceased respondent, it has to proceed with the matter, but if it is not possible for the Court to deal with the matter in the absence of a party it has to refuse to proceed further and dismiss the matter and such eventuality will occur in the absence of necessary party." It is made clear that Rule 9 will not apply to the defect in the suit as of non-joinder of necessary parties as it cannot proceed in their absence. 11. In Kanakarathanammal v. V.S. Loganatha Mudeliar & Anr. 11. In Kanakarathanammal v. V.S. Loganatha Mudeliar & Anr. AIR 1965 SC 271, a Constitution Bench of the Supreme Court while interpreting Order 1 Rule 9, again before addition of proviso, has held that for want of necessary parties the suit is bound to fail, though the Court can direct the necessary parties to be joined under Order 1 Rule 10(2) C.P.C. at the trial stage without prejudice to the plea of limitation of said parties. The learned Judges while examining the case in which the plaintiff had inherited the property of her mother under Section 12 of the Hindu Succession Act had faled to implead her brother who had also inherited the property along with her. The observations of Learned Judges in paragraph 15 are.- "It is unfortunate that the appellants claim has to be rejected on the ground that she failed to implead her two brothers to her suit, though on the merits we have found that the property claimed by her in her present suit belonged to her mother and she is one of the three heirs on whom the said property dissolves by succession under Section 12 of the Act. That, in fact, is the conclusion which the trial Court had reached and yet no action was taken by the appellant to bring the necessary parties on the record. It is true that under O. 1 R.9 of the Code of Civil Procedure no suit shall be defeated by reason of the misjoinder or non-joinder of the parties, but there can be no doubt that if the parties who are not joined are not only proper but also necessary parties to it, the infirmity in the suit is bound to be fatal. Even in such cases, the Court can under 0.1 R.10, sub rule 2 direct the necessary parties to be joined, but all this can and should be done at the stage of trial and that too without prejudice to the said parties plea of limitation. Once it is held that the appellants two brothers are co-heirs with her in respect of the properties left intestate by their mother, the present suit filed by the appellant partakes of the character of a suit for partition and in such a suit clearly the appellant alone would not be entitled to claim any relief against the respondents. Once it is held that the appellants two brothers are co-heirs with her in respect of the properties left intestate by their mother, the present suit filed by the appellant partakes of the character of a suit for partition and in such a suit clearly the appellant alone would not be entitled to claim any relief against the respondents. The estate can be represented only when all the three heirs are before the Court. If the appellant persisted in proceedings with the suit on the basis that she was exclusively-entitled to the suits property, she took the rs and it is now too late to allow her to rectify the mistake. In Naba Kumar Hazra v. Rad-hashyam Mahish, AIR 1931 PC 229 the Privy Council had to deal with a similar situation. In the suit from which that appeal arose, the plaintiff had failed to implead co-mortgagors and persisted in not joining them despite the pleas taken by the defendants that the co-mortgagors were necessary parties and in the end, it was urged on his behalf that the said co-mortgagors should be allowed to be impleaded before the Privy Council. In support of this plea, reliance was placed on the provisions of 0.1 R.9 of the Code. In rejecting the said prayer, Sir George Lowndes who spoke for the Board observed that "they are unable to hold that the said Rule has any application to an appeal before the Board in a case where the defect has been brought to the notice of the party concerned from the very outset of the proceedings and he has had ample opportunity of remedying it in India". 12. Same view was taken in Vishnu Mahadeo Pandse v. The Rajen Textitle Mills (P) Ltd. & Ann AIR 1975 SC 2079, Sri Ram Paricha v. Jagannath & Ors., AIR 1976 SC 2335 and Profulla Chorone Requitte & Ors. v. Satya Choron Requitte, AIR 1979 SC 1682. 13. In Bal Niketan Nursery School v. Kesari Prasad 1987 (3) SCC 587, the learned Judges were dealing with Order 1 Rule 10C.P.C. and not with Order 1 Rule 9 and have held that Order 1 Rule 10 has been expressly provided to meet the situation where bonafide mistake has occurred in the filing of the suit in the name of wrong person, which is required to be set right to promote the cause of justice. 14. 14. In another judgment of Supreme Court in Ratnesh Hirachand Kundan Mai v. Municipal Corporation of Greater Bombay & Ors. 1992 (2) SCC 524, again the learned Judges were dealing with Order 1 Rule 10 (2) C.P.C. and have held that though the plaintiff is dominus litis and he may choose to implead only those persons as defendant against whom he wishes to proceed but under Order 1 Rule 10 (2) the Court may at any stage of the suit direct addition of necessary or proper parties to enable it effectually and completely to adjudicate upon and settled all the questions involved in the suit. 15. In Laxmi Shankar Harishankar Bhatt v. Yashram Vasta (Dead) by LRs. 1993 (3) SCC 49, the learned Judges have held that in the absence of any clear finding based on relevant material about the existence of other co-owners and their being necessary parties the plaintiff cannot be non-suited on the ground of non-joinder of parties. 16. In Beharilal & Anr. v. Smt. Bhuri Devi & Ors. AIR 1997 SC 1879, the learned Judges have held that omission to joint proper parties is not fatal. 17. In Anokhe Lai v. Radhamohan Bansal & Ors. AIR 1997 SC 257, learned Judges have held that when the plaintiff who is dominus litis of the suit is opposed to joining of third party and the consequences of joining of sad party involves de novo trial, the Court should not join such party as defendant. For coming to the conclusion the learned Judges have relied upon the judgment of Privy Council in Naba Kumar Hazra v. Radhashyam Mahish (supra) 18. In Division Bench of Kerala High Court in Venkideswara Prabhu Ravindranatha Prabhu v. Surendranatha Prabhu Sudhakara Prabhu & Ors. AIR 1985 Kerala 265, for want of joining of a partner who is a necessary party in a suit of dissolution of partnership and settlement of accounts suit was held bad keeping in view the proviso of Order 1 Rule 9. Similarly, Madras High Court on S. Guhan & Ors. v. RukminiDeviArundale & Ors., AIR 1998 Madras 1, held that in a suit for framing of a Scheme for the proper administration of the Trust under Section 92 (1) C.P.C. the Trust is a necessary party and in the absence of which the suit deserves to be dismissed in view of proviso to Order 1 Rule 9. 19. v. RukminiDeviArundale & Ors., AIR 1998 Madras 1, held that in a suit for framing of a Scheme for the proper administration of the Trust under Section 92 (1) C.P.C. the Trust is a necessary party and in the absence of which the suit deserves to be dismissed in view of proviso to Order 1 Rule 9. 19. In Gopilal Manaklal & Ors. v. MohammedHussain & Ors. AIR 1993 MP 21, the Madhya Pradesh High Court refused to rectify the defect of nonjoinder of necessary parties on the ground that the plaintiff failed to take steps to join the necessary parties despite the objection of non-joinder of necessary parties taken at the earliest. (See Smt. Umma Saghir v. District Judge, Gorakhpur & Ors. AIR 1990 All 100, Lakshmi Narain v. The District Judge, Fatehpur & Ors. AIR 1992 All Venkatesh Iyer v. Bombay Hospital Trust & Ors. AIR 1998 Bom 373.) 20. After perusing the judgments of Supreme court and various High Courts there remains no doubt that the general rule is that suit cannot be dismissed on the ground of non-joinder of proper parties but this rule does not apply in case of non-joinder of necessary parties. All the objections on the ground of non-joinder of parties must be taken at the earliest but if despite said objection the plaintiff declines to add necessary parties, he can not subsequently be allowed in appeal to rectify the error by applying for amendment. 21. So far the proviso of Order 1 Rule 10 (1) and (2) is concerned it is to help the honest plaintiff who by committing bonafide mistake has not added the necessary parties and who is ready and willing to amend his suit as and when the defect is pointed out. Though, the Court has a wide discretion in the matter of joinder of necessary or proper party, it must be exercised in a reasonable manner so as not to cause inconvenience or embarrassment to the plaintiff who is the dominus litis and in exceptional cases, where the Court is satisfied that the presence of a particular person is absolutely necessary to effectively and completely adjudicate upon and settle all the points involved in the suit, it can implead that party as a defendant notwithstanding the objection of the plaintiff. But this power should be exercised so as not to introduce a new cause of action or alter the nature of the suit. It should be exercised at the stage of trial and avoided to be exercised at the appeal stage, more so, if despite objections at the earliest the plaintiff fails to implead the necessary parties. 22. Applying the ratio of the above judgments to the facts of the present case we are of the view that Additional District Judge was not right in setting aside the decree and judgment of trial Court on merit to give an opportunity to the plaintiff to add necessary parties when he had failed to do so despite the preliminary objection of non-joinder of necessary parties by the defendants in their written statement. We find that the plaintiff had filed an application under Order 1 Rule 10 C.P.C. for adding some of the co-owners which was allowed on 26.4. 1.993. Even in the grounds of appeal before the lower appellate Court the plaintiff had not shown his willingness to join the necessary parties. Rather his case was that the findings of the trial Court were bad that suit suffered from non-joinder of necessary parties. 23. So far adding of necessary parties in exercise of powders under Order 1 Rule 10 (2) C.P.C. is concerned, the Additional District Judge has not exercised this power as he has not directed the plaintiff to add the necessary parties. His direction is limited to give him an opportunity to add necessary parties which he may avail or may not avail. Otherwise also, in the facts and circumstances on record as discussed hereinabove it is not a fit case to exercise power under Order 1 Rule 10 (2) C.P.C. and the Additional District Judge was required to examine the appeal on merit whether the trial Court has correctly decided all the issues including issue No.4 in respect of non-joinder of necessary parties. 24. So far the judgmet of Gauhati High Court in Motol Hia & Ors. v. Abdul Haque & Ors. 24. So far the judgmet of Gauhati High Court in Motol Hia & Ors. v. Abdul Haque & Ors. AIR 1984 Gauhati 77 is concerned, we find ourselves unable to agree with the proposition that proviso added to Order 1 Rule 9 is not to be constructed as to mean that merely because necessary party was not before the Court the suit must be dismissed and in such cases the power of the Court under Order 1 Rule 10 (2) and Order 6 Rule 17 C.P.C. can be invoked. 25. The ratio of the judgment of Supreme Court in State of Kerala v. Sridevi & Ors. 2000 (9) SCC 168 is not applicable in the present case, as in the case before the Supreme Court the appeal against the award under Section 18 of the Land Acquisition Act was filed against the sole respondent-claimant who had died after the award and the application under Order 22 Rule 4 C.P.C. for the impleadment of his legal representatives was dismissed by the High Court as time barred. In these facts and circumstances the learned Judges of the Supreme Court have held that in such a case Order 1 Rule 10 C.P.C. has to be invoked and there being no limitation for such an application in the said Rule it could be filed within three years under Article 137 of the Limitation Act. 26. The result of above discussion is that there is merit in this appeal and it is accepted. The impugned order dated 23.3.2001 passed by the Additional ( District Judge is set aside and the case is remanded to the Additional District/ Judge to restore the appeal to its original number and decide it on merit in( accordance with law and keeping in view the observations made hereinabove. No order as to costs. 27. Records be sent back to the Additional District Judge immediately. Parties are directed to appear before the Additional District Judge on 26.11.2001.