Snippet #31

Saji Koduvath, Advocate, Kottayam.

Introduction

The leading case, Udit Narain Singh Malpaharia v. Addl. Member, Board of Revenue, Bihar, AIR 1963 SC 786, beholds the whole law on the topic.

Key Takeaways from this Decision, Udit Narain
Necessary Party
- A necessary party is one without whom no order can be made effectively.
- The parties whose rights are directly affected are the necessary parties.
- A tribunal exercising a judicial or quasi-judicial act cannot decide against the rights of one person without giving him a hearing or an opportunity to present his case in the manner known to law.
- If the provisions of a particular statute or rules made thereunder do not provide for it, principles of natural justice demand it.
- Any order that may be issued behind the back of such a party can be ignored by the said party.
- Any such order made without hearing the affected parties would be void.
Proper Party
- A proper party is one whose presence is not necessary for making an effective order; but whose presence is necessary for a complete and final decision on the question involved in the proceeding, or whose presence may facilitate the settling of all the questions that may be involved in the controversy.
- The question of making such a person as a party to a writ proceeding depends upon the judicial discretion of the High Court in the circumstances of each case.
- Either one of the parties to the proceeding may apply for the impleading of such a party or such a party may suo motu approach the court for being impleaded therein.

Udit Narain Singh Malpaharia v. Addl. Member, Board of Revenue, Bihar

In Udit Narain Singh Malpaharia v. Addl. Member, Board of Revenue, Bihar AIR 1963 SC 786 our Apex Court held, in para 7 and 9, as under:

“7. To answer the question raised it would be convenient at the outset to ascertain who are necessary or proper parties in a proceeding. The law on the subject is well settled: it is enough if we state the principle. A necessary party is one without whom no order can be made effectively’; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding.”
“A tribunal, therefore, exercising a judicial or quasi-judicial act cannot decide against the rights of one party without giving him a hearing or an opportunity to represent his case in the manner known to law. If the provisions of a particular statute or rules made thereunder do not provide for it, principles of natural justice demand it. Any such order made without hearing the affected parties would be void.
9. The next question is whether the parties whose rights are directly affected are the necessary parties to a writ petition to quash the order of a tribunal. As we have seen, a tribunal or authority performs a judicial or quasi- judicial act after hearing parties. Its order affects the right or rights of one or the other of the parties before it. In a writ of certiorari, the defeated party seeks for the quashing of the order issued by the tribunal in favour of the successful party. How can the High Court vacate the said order without the successful party being before it? Without the presence of the successful party the High Court cannot issue a substantial order affecting his right. Any order that may be issued behind the back of such a party can be ignored by I the said party, with the result that the tribunal’s order would be quashed but the right vested in that party by the wrong order of the tribunal would continue to be effective. Such a party, therefore, is a necessary party and a petition filed for the issue of a writ of certiorari without making him a party or without impleading him subsequently, if allowed by the court, would certainly be incompetent. A party whose interests are directly affected is, therefore, a necessary party. In addition, there may be parties who may be described as proper parties, that is parties whose presence is not necessary for making an effective order but whose presence may facilitate the settling of all the questions that may be involved in the controversy. The question of making such a person as a party to a writ proceeding depends upon the judicial discretion of the High Court in the circumstances of each case. Either one of the parties to the proceeding may apply for the impleading of such a party or such a party may suo motu approach the court for being impleaded therein.”

Following are the recent Supreme Court Judgments that followed Udit Narain Singh

(1) Vishal Ashok Thorat v. Rajesh Shrirambapu Fate, 2019 AIR SC 3616
(2) Swapna Mohanty v. State of Odisha, 2018 17 SCC 621
(3) Kanaklata Das v. Naba Kumar Das, 2018 AIR SC 682
(4) Poonam v. State of U. P. , 2016 2 SCC 779
(5) Asstt. G.M State Bank of India v. Radhey Shyam Pandey, 2015 (3) SCALE 39
(6) Sh Jogendrasinhji Vijaysinghji VS State of Gujarat, 2015 AIR SC 3623
(7) Census Commissioner v. R. Krishnamurthy, 2015 2 SCC 796
(8) H. C. Kulwant Singh v. H. C. Daya Ram, 2014 AIR SC 3083,
(9) Ranjan Kumar v. State Of Bihar, 2014 16 SCC 187
(10) State of Rajasthan v. Ucchab Lal Chhanwal, (2014) 1 SCC 144
(11) Manohar v . State of Maharashtra, 13 Dec 2012
(12) Vijay Kumar Kaul v. Union of India, (2012) 7 SCC 610
(13) Delhi Development Authority v. Bhola Nath Sharma, AIR 2011 SC 428
(14) State of Assam v. Union of India, 30 Sep 2010
(15) Competition Commission of India v. Steel Authority of India Ltd. , (2010) 10 SCC 744
(16) Public Service Commission v. Mamta Bisht, (2010) 12 SCC 204
(17) JS Yadav v. State of UP (2011) 6 SCC 570
(18) T. Vijendradas v. M. Subramanian , 09 Oct 2007
(19) Avtar Singh Hit v. Delhi Sikh Gurdwara Mangt. Comte., (2006) 8 SCC 487
(20) Assam Small Scale Ind. Dev. Corp. v. J. D. Pharmaceuticals, 2005 (13) SCC 19

Non-joinder of a Party – Relevant Provision of CPC

Section 99 of the CPC reads as under:

99. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction: No decree shall be reversed or substantially varied, nor shall any case be remanded in appeal on account of any misjoinder or non-joinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court.
Provided that nothing in this section shall apply to non-joinder of a necessary party.

Rule 9 of Order I CPC reads as under:

9. Misjoinder and nonjoinder: No suit shall be defeated by reason of the misjoinder or nonjoinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it:
Provided that nothing in this rule shall apply to nonjoinder of a necessary party.

Non-joinder or misjoinder of Parties – Objection

13. Objections as to non-joinder or misjoinder.
All objections on the ground of non-joinder or misjoinder of parties shall be taken at the earliest possible opportunity and, in all cases where issues are settled, at or before such settlement, unless the ground of objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived.

Necessary Party – for Effectually and Completely settle the questions

In Razia Begum vs. Anwar Begum, AIR 1958 SC 886, our Apex Court observed as under:

“The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party. The line has been drawn on a wider construction of the rule between the direct interest or the legal interest and commercial interest. It is, therefore, necessary that the person must be directly or legally interested in the action in the answer, i.e., he can say that the litigation may lead to a result which will affect him legally that is by curtailing his legal rights.” Quoted in: Poonam VS State of UP, 2016-2 SCC 779

Court has Discretion to add a Necessary Party or Proper Party

Order I 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.

In Mumbai International Airport Pvt. Ltd. v. Regency Convention Centre & Hotels Pvt. Ltd., (2010) 7 SCC 417, it is held as under:

“The said provision makes it clear that a court may, at any stage of the proceedings (including suits for specific performance), either upon or even without any application, and on such terms as may appear to it to be just, direct that any of the following persons may be added as a party: (a) any person who ought to have been joined as plaintiff or defendant, but not added; or (b) any person whose presence before the court may be necessary in order to enable the court to effectively and completely adjudicate upon and settle the question involved in the suit. In short, the court is given the discretion to add as a party, any person who is found to be a necessary party or proper party.
A ‘necessary party‘ is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the Court. If a ‘necessary party’ is not impleaded, the suit itself is liable to be dismissed.
A ‘proper party‘ is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in disputes in the suit, though he need not be a person in favour of or against whom the decree is to be made.
If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the plaintiff. The fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance.”

It is pointed out in Mumbai International Airport Pvt. Ltd. v. Regency Convention Centre & Hotels Pvt. Ltd. that the Apex Court held in Kasturi v. Iyyamperumal, 2005 (6) SCC 733, that a purchaser of the suit property subsequent to the suit agreement would be a necessary party as he would be affected if he had purchased it with or without notice of the contract, but a person who claims a title adverse to that of the defendant-vendor will not be a necessary party. If the owner of a tenanted property enters into an agreement for sale of such property without physical possession, in a suit for specific performance by the purchaser, the tenant would not be a necessary party.

Necessary Party – Persons Likely to be Affected must be parties

In Udit Narain Singh Malpaharia v. Addl. Member, Board of Revenue, Bihar AIR 1963 SC 786

“35. ………. It is well-settled principle consistent with natural justice that if some persons are likely to be affected on account of setting aside a decision enuring to their benefit, the Court should not embark upon the consideration and the correctness of such decision in the absence of such persons.” (Quoted in Poonam VS State of U. P. , 2016 2 SCC 779; State of Assam v. Union of India [2010] 12 S.C.R. 413)

The Court of Appeal of California in California C.C. Corp. v. Superior Court, (1932) 122 Cal.App. 404 it is held as under:

“In Powell v. People (1905), 214 Ill. 475 [105 Am. St. Rep. 117, 2 Ann. Cas. 551, 73 N.E. 795], it is directly held that mandamus will not lie where it appears upon the face of the petition or the face of the record that a necessary party, or a party whose interests are directly affected has been omitted, the court of its own motion will decline to issue the writ. There, as here, the want of the necessary party appeared upon the record, and it was there held that a plea of such want of the necessary party was not necessary to bring the fact to the attention of the court.”

In Ranjan Kumar v. State of Bihar, 2014-16 SCC 187, it is held as under:

4. On a perusal of the orders impugned, we find that only 40 persons were made respondents before the High Court and hardly a few appointees filed applications for intervention. It is well settled in law that no adverse order can be passed against persons who were not made parties to the litigation.

The court referred the following decisions:

Prabodh Verma and others v. State of UP, (1984) 4 SCC 251;
Indu Shekhar Singh and others v. State of UP, (2006) 8 SCC 129;
Km. Rashmi Mishra v. M.P. Public Service Commission, (2006) 12 SCC 724;
Tridip Kumar Dingal and others v. State of West Bengal, (2009) 1 SCC 768;
Public Service Commission, Uttaranchal v. Mamta Bisht, (2010) 12 SCC 204, referred to – Udit Narain Singh Malpaharia v. Board of Revenue, AIR 1963 SC 786, Gulabchand Chhotalal Parikh v. State of Gujarat, AIR 1965 SC 1153, Babubhai Muljibhai Patel v. Nandlal Khodidas Barot, (1974) 2 SCC 706, Sarguja Transport Service v. STAT, (1987) 1 SCC 5;
State of Rajasthan v. Ucchab Lal Chhanwal, (2014) 1 SCC 144;
Vijay Kumar Kaul v. Union of India, (2012) 7 SCC 610;
J.S. Yadav v. State of Uttar Pradesh, (2011) 6 SCC 570;
Union of India v. S. Vinod Kumar, AIR 2008 SC 5;
Chandra Prakash Tiwari and others v. Shakuntala Shukla, (2002) 6 SCC 127;
Madan Lal v. State of J & K, (1995) 3 SCC 486;
Om Prakash Shukla v. Akhilesh Kumar Shukla, 1986 (Supp) SCC 285.

Easement – owners of properties who obstruct alone are necessary parties

If easement right is claimed over a way that passes through various (servient) properties, the owners of properties who obstruct the way alone are necessary parties; and those who do not raise any obstruction are not necessary parties.

Madan Mohan Chakravarthy v. Sashi Bhusan, AIR 1915 Cal 403 (19 Cal WN 1211);
Lal Mohammad Biswas v. Emajuddin Biswas, AIR 1964 Cal 548;
Varkey Joseph v. Mathai Kuriakose, (1992) 2 Ker LJ 135; (1992) 2 Ker LT 169.

Necessary Party – Person Likely to Suffer has to be Impleaded

Census Commissioner v. R. Krishnamurthy, 2015-2 SCC 796, it is observed as under:

19. As we evince from the sequence of events, the High Court in the earlier judgment had issued the direction relating to carrying of census in a particular manner by adding certain facets though the lis was absolutely different. The appellant, the real aggrieved party, was not arrayed as a party-respondent. The issue was squarely raised in the subsequent writ petition where the Census Commissioner was a party and the earlier order was repeated. There can be no shadow of doubt that earlier order is not binding on the appellant as he was not a party to the said lis. This view of ours gets fructified by the decision in
H.C. Kulwant Singh v. H.C. Daya Ram JT 2014 (8) SC 305 wherein this Court,
- after referring to the judgments in
  - Khetrabasi Biswal v. Ajaya Kumar Baral, (2004) 1 SCC 317
  - UditNarain Singh Malpaharia v. Board of Revenue, AIR 1963 SC 786
  - Prabodh Verma v. State of U.P. (1984) 4 SCC 251 and
  - Tridip Kumar Dingal v. State of W.B. (2009) 1 SCC 768
- has ruled thus:
‘….. if a person who is likely to suffer from the order of the court and has not been impleaded as a party has a right to ignore the said order as it has been passed in violation of the principles of natural justice’.”

Order behind the back, in Violation of Natural Justice, can be ignored

JS Yadav v. State of UP, (2011) 6 SCC 570, it is held as under:

“32. No order can be passed behind the back of a person adversely affecting him and such an order if passed, is liable to be ignored being not binding on such a party as the same has been passed in violation of the principles of natural justice. The principles enshrined in the proviso to Order I Rule 9, of the Code of Civil Procedure, 1908 provide that impleadment of a necessary party is mandatory and in case of non-joinder of necessary party, the plaintiff/petitioner may not be entitled for the relief sought by him. The litigant has to ensure that the necessary party is before the Court, be it a plaintiff or a defendant, otherwise the proceedings will have to fail. In Service Jurisprudence if an unsuccessful candidate challenges the selection process, he is bound to implead at least some of the successful candidates in representative capacity. In case the services of a person is terminated and another person is appointed at his place, in order to get relief, the person appointed at his place is the necessary party for the reason that even if the plaintiff/petitioner succeeds, it may not be possible for the Court to issue direction to accommodate the petitioner without removing the person who filled up the post manned by plaintiff/petitioner. (Vide:
- Prabodh Verma v. State of U.P. , AIR 1985 SC 167;
- Ishwar Singh v. Kuldip Singh, 1995 (supp) 1 SCC 179;
- Tridip Kumar Dingal v. State of WB, (2009) 1 SCC 768;
- State of Assam v Union of India, (2010) 10 SCC 408; and
- PSC, Uttaranchal v. Mamta Bisht , AIR 2010 SC 2613.)”

Who are Entitled to Defend the Orders, are Necessary Parties

In Sh Jogendrasinhji Vijaysinghji v. State of Gujarat, 2015 AIR SC 3623, it is observed as under:

“Every adjudicating authority may be nomenclatured as a tribunal but the said authority(ies) are different that pure and simple adjudicating authorities and that is why they are called the authorities. An Income Tax Commissioner, whatever rank he may be holding, when he adjudicates, he has to be made a party, for he can defend his order. He is entitled to contest. There are many authorities under many a statute. Therefore, the proposition that can safely be culled out is that the authorities or the tribunals, who in law are entitled to defend the orders passed by them, are necessary parties and if they are not arrayed as parties, the writ petition can be treated to be not maintainable or the court may grant liberty to implead them as parties in exercise of its discretion. There are tribunals which are not at all required to defend their own order, and in that case such tribunals need not be arrayed as parties.”

In Poonam v. State of UP, 2016-2 SCC 779, referring Savitri Devi Vs. District Judge, Gorakhpur, AIR 1999 SC 976, it is held as under:

“17. The term “entitled to defend” confers an inherent right to a person if he or she is affected or is likely to be affected by an order to be passed by any legal forum, for there would be violation of natural justice. The principle of audi alteram partem has its own sanctity but the said principle of natural justice is not always put in strait jacket formula. That apart, a person or an authority must have a legal right or right in law to defend or assail.
34. … If a non-selected candidate challenges the selection, he is under legal obligation to implead the selected candidates as they are necessary parties and there can be no two opinions as regards such a proposition of law.”

Representative action

In Poonam v. State of UP, 2016-2 SCC 779, it is observed as under:

“39. The aforesaid decisions do not lay down as a proposition of law that in every case when a termination is challenged, the affected person has to be made a party. What has been stated is when one challenges a provision as ultra vires the persons who are likely to be affected, some of them should be made parties in a representative capacity. That has been the consistent view of this Court in service jurisprudence.”

Necessary Party – Each case has to be understood in proper perspective

In Savitri Devi Vs. District Judge, Gorakhpur, AIR 1999 SC 976, the Court took exception to courts and tribunals being made parties. It is apposite to note here that propositions laid down in each case has to be understood in proper perspective. (Referred to in Poonam v. State of UP, 2016-2 SCC 779)

In Sh Jogendrasinhji Vijaysinghji v. State of Gujarat, 2015 AIR SC 3623, referring Hari Vishnu Kamath v. Syed Ahmad Ishaque, AIR 1955 SC 233, Udit Narain Singh (supra) and Savitri Devi (supra) it is observed as under:

“It is apposite to note here that propositions laid down in each case has to be understood in proper perspective. Civil courts, which decide matters, are courts in the strictest sense of the term. Neither the court nor the Presiding Officer defends the order before the superior court it does not contest. If the High Court, in exercise of its writ jurisdiction or revisional jurisdiction, as the case may be, calls for the records, the same can always be called for by the High court without the Court or the Presiding Officer being impleaded as a party. Similarly, with the passage of time there have been many a tribunal which only adjudicate and they have nothing to do with the lis. We may cite few examples;
- the tribunals constituted under the Administrative Tribunals Act, 1985,
- the Custom, Excise & Service Tax Appellate Tribunal,
- the Income Tax Appellate Tribunals,
- the Sales Tax Tribunal and such others.
Every adjudicating authority may be nomenclatured as a tribunal but the said authority(ies) are different that pure and simple adjudicating authorities and that is why they are called the authorities. An
- Income Tax Commissioner,
whatever rank he may be holding, when he adjudicates, he has to be made a party, for he can defend his order. He is entitled to contest. There are many authorities under many a statute. Therefore, the proposition that can safely be culled out is that the authorities or the tribunals, who in law are entitled to defend the orders passed by them, are necessary parties and if they are not arrayed as parties, the writ petition can be treated to be not maintainable or the court may grant liberty to implead them as parties in exercise of its discretion. There are tribunals which are not at all required to defend their own order, and in that case such tribunals need not be arrayed as parties. To give another example:-in certain enactments, the
- District Judges function as Election Tribunals
from whose orders a revision or a writ may lie depending upon the provisions in the Act. In such a situation, the superior court, that is the High Court, even if required to call for the records, the District Judge need not be a party. Thus, in essence, when a tribunal or authority is required to defend its own order, it is to be made a party failing which the proceeding before the High Court would be regarded as not maintainable.”

In Poonam v. State of UP, 2016-2 SCC 779, it is observed as under:

“40. In this regard, we may refer to the rule stated by Lord Halsbury in Quinn v. Leathem[37]:-
“Every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law but govern and are qualified by the particular facts of the case in which such expressions are to be found.”
41. A three-Judge Bench in Union of India and others v. Dhanwanti Devi and others[38] while discussing about the precedent under Article 141 of the Constitution, held that:
“….. 10. Therefore, in order to understand and appreciate the binding force of a decision it is always necessary to see what were the facts in the case in which the decision was given and what was the point which had to be decided. No judgment can be read as if it is a statute. A word or a clause or a sentence in the judgment cannot be regarded as a full exposition of law. Law cannot afford to be static and therefore, Judges are to employ an intelligent technique in the use of precedents……”

Pro forma Party

A pro forma party to a litigation is one against whom no relief is sought for in a legal proceeding (at its beginning) on the posit that he is a proper party. It is usually done with a view to seek reliefs in future, amending the pleading, if the changed situation so warrants.

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).

Foot Note

Section 99, and Rule 9 to 13 of Order I, CPC are the relevant provisions. They read as under:

Section 99 of the CPC reads as under:

99. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction: No decree shall be reversed or substantially varied, nor shall any case be remanded in appeal on account of any misjoinder or non-joinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court.
Provided that nothing in this section shall apply to non-joinder of a necessary party.

Rule 9 to 13 of Order I CPC read

9. Misjoinder and nonjoinder: No suit shall be defeated by reason of the misjoinder or nonjoinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it:
Provided that nothing in this rule shall apply to nonjoinder of a necessary party.
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.
(4) Where defendant added, plaint to be amended-
Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant.
(5) Subject to the provisions of the Indian Limitation Act, 1877 (15 of 1877), section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons.
11. Conduct of suit The Court may give the conduct of 1[a suit] to such persons as it deems proper.
12. Appearance of one of several plaintiffs or defendants for others
(1) Where there are more plaintiffs than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding; and in like manner, where there are more defendants than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding.
(2) The authority shall be in writing signed by the party giving it and shall be filed in Court.
13. Objections as to non-joinder or misjoinder.
All objections on the ground of non-joinder or misjoinder of parties shall be taken at the earliest possible opportunity and, in all cases where issues are settled, at or before such settlement, unless the ground of objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived.

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Book No. 2: A Handbook on Constitutional Issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

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Suits
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Law on Hindu Religious Endowments
- Philosophy of Idol Worship
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
- ‘Muslim Women: Ban to Enter Mosques, Is it Unconstitutional
- State & Court – Protectors of All Charities
Ayodhya and Sabarimala Disputes
- Ayodhya Disputes: M. Siddiq case – Pragmatic Verdict
- Sabarimala Review Petitions & Reference to 9-Judge Bench
- SABARIMALA REVIEW and Conflict in Findings between Shirur Mutt Case & Durgah Committee Case
General

Who are Necessary Parties, Proper Parties, and Pro Forma Parties, in Suits

Created: 07 Jul 2024 at 23:29

Who are Necessary Parties, Proper Parties, and Pro Forma Parties, in Suits

Adjudication as to Proper Stamp under Stamp Act

Previous Owner (of Defendant) is Not a Necessary Party in a Recovery Suit

Who are Necessary Parties, Proper Parties, and Pro Forma Parties, in Suits

Created: 07 Jul 2024 at 23:29

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Who are Necessary Parties, Proper Parties, and Pro Forma Parties, in Suits

Adjudication as to Proper Stamp under Stamp Act

Previous Owner (of Defendant) is Not a Necessary Party in a Recovery Suit