P Ramakrishna
Necessary Party and Proper Party in CPC
P Ramakrishna Patro 19 Aug 2018

Necessary Party and Proper Party  in CPC

Author Name:   rkca1234@gmail.com


Article is presented in a dialog form making the concepts live and interactive.

Necessary Party and Proper Party

 

Filo: Hi Juris , Can you help me to understand

Necessary Party and Proper Party in CPC .

Zuris: Understand . You are confused for the language that

“a proper party is one ......but whose presence is necessary .....

So why proper party is not necessary party when it is also necessary or the word “ necessary “ used for explaining it?

Filo: absolutely that is the doubt .

Zuris: First of all you should know they are not defined in CPC and hence you would not find definition clause for them anywhere in CPC .( would be obliged if you can )

Also there is no mention of the word called PROPER PARTY any where in CPC .

Only the word NECESSARY PARTY is used in Order 1 Rule 9 of CPC in the proviso .

“ Provided that nothing in this rule shall apply to NonJoinder of a NECESSARY PARTY . “

Filo: Then help me to understand the concept in an easier way .

Zuris: You have to memorise TRIPLE N rule .

Filo: But I have not seen such thing anywhere in CPC Textbooks or blog writers as well .

Zuris: Yess Correct . This is Invented for You to memorise for ever .

Filo: Ohhh so nice of you . Thanks But Please be quick .. I am impatient .

Zuris: NECESSARY PARTY starts with N .

We can memorize by Triple N rule .

Necessary Party

Not present then

NO decree can be passed .

But in absence of Proper Party decree can be passed. then why proper party?

Presence of proper party enables the court to adjudicate MORE effectually and completely.

Filo : Ok but from where you derive such things .

Zuris : If you check judgments you will find

 “The law on the subject is well settled

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.”

And Recent law on this by recent language of Supreme Court:

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 dispute in the suit, though he need not be a person in favour of or against whom the decree is to be made.

 

New language does not deviate or modify the earlier wellsettled principle but clarifies in a elaborate manner.

Filo : Please help me to understand Rule 9 of Order 1 CPC

Zuris : Yessss you are in right track now . That is

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.

Here you find that

The law says for misjoinder or nonjoinder of parties suit will not be defeated.

The law Empowers the court to handle with available parties actually before it, But this relaxation is curtailed in case necessary party is not joined by the proviso. So necessary party is a must. Now you would be thinking here word necessary party word is used and hence something called necessary party is intended by legislature .

Filo :Yes .

Now Can you please elaborate where it is empowered to the court that the court can demand or allow a party who is not necessary party as required in Proviso to Order 1 Rule 9 but necessary for adjudication ? and also make any guess from where the word proper felt to be used for such party called proper party ?

Zuris : Of course I can make a guess from

Order 1 Rule 10(2) of the Code of Civil Procedure

10. (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.”

Where you would find the word “ improperly joined ” in which case court can strike out and the court May also add any party whose presence may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all question involved in the suit.

Here necessary does not refer to “ necessary party” as mandated in Order 1 Rule 9. So you should understand that it enables the court when court feels whose presence is necessary for effectually and completely adjudicate. But we know courts power is restricted by Provsio to Rule 9 Order 1 that is bound to have necessary party. Therefore the liberty or power given is to understood that there is a party other than necessary party as mandated in Order 1 Rule 9 Provsio and also that joining is NOT improper.

So we can guess that party is PROPER PARTY.

Filo : Why we guess so regarding naming of proper party

Zuris : Now you are ready and can make search on this and confirm . I told about the law available on the subject for your practice and you would never confuse .

Filo: Thanks a lot . Dont you think we have trespassed into someone’s facebook page for our discussion . is it allowed?

Zuris : You are irking me to talk on Adverse Possession concept.

Filo : Ohh . Ok some other time..

although same is necessary for learning but now not proper to discuss.

Zuris : wait wait... nice use of necessary and proper ... nice sense of humor..

Filo : ha ha.

And i feel we should introduce each other to readers.

Zuris : I am Zuris . Derived from Jurisprudence and I am supposed to know the law.

Filo : I am Filo . Derived from Philospher .(.Greek φιλοσοφία, philosophia, literally "love of wisdom") i have love for wisdom.

Zuris : Ok now for your reference i have pasted the extract of the recent judgement on this . bab.bb bye

Mumbai International Airport (P) Ltd. v. Regency Convention Centre and Hotels (P) Ltd. (2010) 7 SCC 417:

Supreme Court considered the scope of Order 1 Rule 10(2) CPC and observed: “ The general rule in regard to impleadment of parties is that the plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. But this general rule is subject to the provisions of Order 1 Rule 10(2) of the Code of Civil Procedure (“the Code”, for short), which provides for impleadment of proper or necessary parties.

The said sub-rule is extracted below:

# “10. (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.”

# 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 questions 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 dispute 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.

 

# Let us consider the scope and ambit of Order 1 Rule 10(2) CPC regarding striking out or adding parties. The said sub-rule is not about the right of a non-party to be impleaded as a party, but about the judicial discretion of the court to strike out or add parties at any stage of a proceeding. The discretion under the sub-rule can be exercised either suo motu or on the application of the plaintiff or the defendant, or on an application of a person who is not a party to the suit. The court can strike out any party who is improperly joined.

 

# The court can add anyone as a plaintiff or as a defendant if it finds that he is a necessary party or proper party. Such deletion or addition can be without any conditions or subject to such terms as the court deems fit to impose. In exercising its judicial discretion under Order 1 Rule 10(2) of the Code, the court will of course act according to reason and fair play and not according to whims and caprice.”

Author Bio:   P Ramakrishna Patro   (FCA ,MBA, CAIIB, LLB Ex OJS)

                       Advocate Orissa   Highcourt  Mobile : 8280327084

Email:   rkca1234@gmail.com       

 

PUBLISHED already in     www.legalservicesindia.com

ISBN No: 978-81-928510-1-3 ( as given by below link )

http://www.legalservicesindia.com/article/2565/Necessary-Party-And-Proper-Party-in-CPC.html

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