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Necessary and Proper Party, Misjoinder of Party

Order 1 deals with the subject of parties to suit and inter alia (amongst other things) with the joinder, misjoinder and non joinder of parties and to some extent with the joinder of cause of action Under Rule 1, Order 1, all persons having a common cause of action are entitled to join as Plaintiffs. Similarly, under Rule 2, several persons may be joinded as defendants. A person is a “necessary party” if the suit cannot be effectively disposed of without him i.e. no order cannot be effectively without made. If the decree cannot be effective without the absent parties, the suit is liable to be dismissed. “Proper Parties” are those parties whose presence enables the court to adjudicate the matter more effectively and completely. In the case of Non-joinder of proper parties the non-joinder is not fatal to suit.

Non Joinder of parties:

The omission to join some person as party to a suit, whether as plaintiff or defendant, who ought to have been so joined, according to law, is called non joinder of parties. All the proper and necessary partied must be joined. In the absence of necessary parties, the suit is liable to be dismissed while in the absence of proper parties, the suit is adjudicated according to law. Though some difficulties may arise, Order 1 Rule 1 cpc says that all persona having a common cause of action are entitled to join as plaintiffs. Similarly under Rule 3, Order 1, several persons may be joined as defendants.

Misjoinder of parties.

The improper joining together of parties to a suit as plaintiffs or defendants. The joinder in one action of defendants against whom there is no cause of action, but that against one is totally disconnected with that against the other, except in so far as it historically connected as one matter in a transaction, is misjoinder. The word “misjoinder” in Section 99 CPC includes Non joinder. The joinder of any person as a party to s suit contrary to the provisions of the code is called mis-joinder. The joinder of any person as a party to a suit contrary to the provisions of the code is called mis-joinder. It may be misjoinder of plaintiffs or the defendants. Order 1 Rule 9 provides that no suit is liable to be defeated by reason of non joinder or misjoinder of parties.

Under order 1 rule 2 cpc, where it appears to court that any joinder of plaintiff may embarrass or delay trial of the suit, court may put plaintiffs to their election or order separate trials or make such other orders as may be expedient. Similarly, under rule 3A order 1, the court may order separate trials of the defendants. Rule 4 order 1 lays down that if several persons joinded together as plaintiffs in a suit, but it is found that only some of them are entitled to the relief claimed, a judgment may be given in favor of such persons only, without amendement of the proceedings. Similarly in provided for in respect of defendants.

Necessary and Proper Party

SUPREME COURT OF INDIA

Dr. Dhananjaya Y. Chandrachud, Indu Malhotra and K.M. Joseph, JJ.

2020(4) S.C.T. 716

Prevention of Corruption Act, 1988 Sections 7 and 13 ( 1 )(d) Railway Protection Force Rules , 1987, Rule 153 – Illegal gratification while under suspension under separate case – Order of compulsory retirement substituted with Order of re-instatement with all consequential benefits, and 50% backwages – Police officer in Railway Protection Force required to maintain high standard of integrity in discharge of his official functions – Charges proved against respondent “were of neglect of duty” which resulted in pecuniary loss to Railways – Respondent was Sub-Inspector in Railway Police discharging office of trust and confidence which required absolute integrity – High Court not justified in setting aside order of compulsory retirement and directing re-instatement with consequential benefits, and payment of backwages to extent of 50% – Therefore, order of compulsory retirement restored – Direction to Department to release Gratuity, if due and payable to respondent alongwith interest as provided by Section 7(3A) of Payment of Gratuity Act, 1972 read with applicable Office Memorandum/Notification issued by Government of India./font

B.C.Chaturvedi v. Union of India, (1995) 6 SCC 749.

Chennai Metropolitan Water Supply and Sewerage Board v. T.T. Murali Babu, (2014) 4 SCC 108.

Coal India Ltd. v. Mukul Kumar Choudhuri, (2009) 15 SCC 620.

Coimbatore District Central Co-op Bank v. Employees Association, (2007) 4 SCC 669.

Director General RPF v. Ch. Sai Babu, (2003) 4 SCC 331.

Om Kumar v. Union of India, (2001) 2 SCC 386.

State of Andhra Pradesh v Chitra Venkata Rao, (1975) 2 SCC 557.

State of Andhra Pradesh v S. Sree Rama Rao, AIR 1963 SC 1723.

State of Rajasthan v. Heem Singh, C.A. No. 3340 of 2020. D/d. 29. 10 .2020.

Union of India v. G. Ganayutham, (1997) 7 SCC 463.

Union of India v. Manab Kumar Guha, (2011) 11 SCC 535.

Union of India v. P. Gunasekaran, (2015) 2 SCC 610.

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PUNJAB AND HARYANA HIGH COURT

Raj Mohan Singh, J.

2021(1) R.C.R.(Civil) 271

Civil Procedure Code, 1908, Order 1 Rule 10 cpc – Specific Relief Act, 1963 Section 19 (b) Suit for specific performance – Impleadment as defendant – Party claiming independent title and possession adverse to title of vendor and not on basis of agreement/contract, is not proper party – If said party is impleaded scope of suit for specific performance shall be enlarged and it will become suit for title and it will involve intricated question of title which is not permissible in law – Stranger to suit cannot be added in suit for specific performance merely in order to find out, who is in possession of agreed property or to avoid multiplicity of suits – It is only assignee by sale in case of specific performance who can be impleaded as party defendant.

PUNJAB AND HARYANA HIGH COURT

Augustine George Masih, J.

2020(4) R.C.R.(Civil) 202

Constitution of India, 1950 Article 227 Hindu Minority and Guardianship Act, 1956 Section 6 read with Section 13 Civil Procedure Code, 1908, Order 1 , Rule 10 – Petition for custody of minor and welfare of minor by advocate parents – Application for impleadment by grandparents – Held, merely because grandparents impleaded as party respondents to writ petition, does not, give a right to grandparents for moving application for being impleaded as party to lis, which shows intent on part of petitioners to delay proceedings – Thus, not a genuine and bona fide effort on part of grandparents to ensure welfare of the child but to delay proceedings.

 

SUPREME COURT OF INDIA

Arun Mishra and Uday Umesh Lalit, JJ.

Decided: 2020

Constitution of India, 1950, Article 32 – Litigation regarding home project – Misjoinder of party – NBCC appointed as Project Management Consultant to complete various projects – It was permitted to float tenders and prepare DPRs – Complaints are filed against NBCC seeking reliefs, such as refund of amounts that home buyers have paid to Amrapali Group or to grant possession of flats – Court had granted permission to NBCC to complete project – NBCC immune from any such actions – Consumer Redressal Commission and other authorities requested not to permit impleadment of NBCC as respondent and not to issue summons to NBCC as they were doing work under supervision of Apex Court and were not answerable to any other court, tribunal, authorities – Thus, they cannot be dragged in litigation filed by existing home buyers, previous contractor.

GAUHATI HIGH COURT

Mir Alfaz Ali, J.

Decided: 2020

Civil Procedure Code, 1908, Order 1 , Rule 9 – Non-joinder of party – Mere non-joinder of misjoinder of party is not fatal – What is fatal is the non-joinder of necessary parties and a necessary party is one without whom an effective decree cannot be passed or without whom the suit cannot legally proceed – It is not the absence or non-joinder of a party , rather the inability of the Court to decide the dispute effectively.

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Also Check: Attachment of Property: Section 60 CPC