Taken From: Who are Necessary Parties, Proper Parties and Pro Forma Parties in Suits

Saji Koduvath, Advocate, Kottayam

Order 1 rule 10 CPC reads as under:

Rule 10. Suit in name of wrong plaintiff.

• .(1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted thought a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.
• (2) 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.
• (3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.

Plaintiff claims Ownership; Suit against Trespasser – Not Necessary to Implead ‘Previous Owners’ (Alleged by the Defendants)

R. K. S.  Builders v. Bhupinder Kumar , 2001-2 Punj LR 804, 2001-2 RCR (Civil) 497.

Facts of the Case

• Plaintiff alleged that he is owner of the property and that the said property is in the illegal possession of the defendants.
• The defendants contended that they have purchased the same from its rightful owners.
• During the pendency of the suit, the defendants have further sold the property to various persons.
• Application under Order 1 Rule 10 CPC read with Order 6 Rule 17 CPC was filed.

This application was resisted by the defendants, inter alia, on the ground that the plaintiff had not added the previous owners of the property from whom the defendants purchased it. The trial court allowed the Petition.

The High Court, dismissing the Revision Petition, held as under:

• When the case of the plaintiff is that he is the owner of the property which has been illegally occupied by the defendants, it is not necessary to implead previous (rightful) owners (alleged by the defendants).

Land Reforms Act Conferred Title on Tenants: Previous Owners, Not Necessary Parties

Bir Singh v. Kishan Chand, AIR  2007 HP 24

• Non-joinder of the previous owners, divested of their ownership by virtue of the Land Reforms Act, and the ownership rights stood conferred upon the tenants, are not necessary parties.

Original Owner Not Necessary Party, When Dispute is Solely Between Purchaser and another

Kaleem Pasha v. Chief Secretary, Government of Karnataka Vidhana, ICC 2018 4 810,

• In the absence of the plaintiff claiming any relief against the previous owners of a vehicle nor their participation in the suit was in any manner of help in the proper adjudication of the matter and also the disputed fact was solely between the plaintiff and defendant in the original suit, the original owner and the auction purchaser were not necessary parties.

Agreement for sale – Prior owner Necessary Party

Pamujula Narayana v. Ramachandruni Malakondaiah,  2006-3 ALD 278, ALT 2006 4 247.

Facts of the case

• Suit was for specific performance.
• Agreement was executed by the defendant as Power of Attorney holder of the Owner.
• Owner died even prior to the filing of the suit.
• Plaint was silent about the owner; and read as if PoA was the owner.

Court held:

• It is well known that the owner of the property agreed to be sold is a necessary party to the suit (and PoA not sufficient).

Suit dismissed if Prior owner, a Necessary Party, is not impleded within Limitation

In the above case, Pamujula Narayana v. Ramachandruni Malakondaiah,  2006-3 ALD 278, ALT 2006 4 247, it was further held –

• The suit will be barred, in view of Sec. 21 of Limitation Act, if prior owner (or successor) is not  impleaded within time prescribed. 

Vendee Becomes the Sole Owner

In Hardeva v. Ismail, AIR 1970 Raj 167, it was held – if it is possible to determine the rights and interests of the parties, not to dismiss a suit. It was also observed as under:

• “When the vendor has sold his property and has delivered the possession of the property to the vendee, the vendee becomes the sole owner of the property and it is upto the vendee to defend his title against any person who claims any right in the property. The vendor may be a proper party, but he is not a necessary party inasmuch as an effectual decree can be passed in favour of third person against the vendee.”

Two tests for determining who is a necessary party

It was laid down in the Benares Bank Ltd. v. Bhagwan Das, AIR 1947 All 18 (FB), there were two tests –

• Firstly, there must be a right to some relief against the defendant, and
• Secondly, in the absence of such a party it could not be possible to pass an effective decree. (Approved in Deputy Commissioner, Hardoi v. Rama Krishna Narain, AIR 1953 SC 521)

It was further pointed out in the Benares Bank Ltd. v. Bhagwan Das, AIR 1947 All 18 (FB) – where the plaintiff files a suit against a defendant who is not the full owner of the property and has only a limited right, the owner is a necessary party as no effectual decree could be passed against the defendant (Subbaraya Sastri v. Seetha Rama-swami, AIR 1933 Mad 664; Rahima Bi v. Vellore Municipal Council, AIR 1954 Mad 495, Brojanath Bose v. Durga Prosad Singh. (1907) ILR 34 Cal 753, Narahari Mohanti v. Ghanshyam Bel, AIR 1963 Orissa 186, Chenthiperumal Pillai v. D. M. Devasa-hayam, AIR 1956 Trav-Co. 181 (FB), and Chandra Nath Sarma v. Guna Ram Kalita, AIR 1949 Assam 21).