Proper and Necessary party under CPC

Introduction:

In a civil suit, having opposite parties is the most crucial requirement of the lawsuit. However, every party of the suit doesn’t need to be adjudicated. In this way, there is some distinction between the necessary and proper party in a civil suit.

One of the basic requirements of any civil litigation is proper party and necessary party under the CPC. But not every party is required to adjudicate on the matter. Hence, it is essential to separate the necessary and proper parties.

A difference between Necessary and proper party:

In the case of State of Assam v. Union of India and Ors. etc (2011 AIR SCW 3724) The Supreme Court held that the necessary party is one without whom no order can be effectively issued-the proper party is one without whom an effective order can be issued-but its presence is necessary for a full and final decision on the matter concerned.

Civil Code of Procedure, 1908: Order I, Rule 10-Impleading the party as a necessary party to a suit by the Court. Necessary to proper party Who is the difference brought by a plaintiff between the necessary and proper party action.

Who is a necessary party in a suit?

A necessary party means the court cannot pass the effective decree if they are not joined or absent from that party in the suit. Therefore, without an impleaded necessary party, the suit can be treated as premature and liable to be dismissed. Thus, the necessary party is an essential requirement for every suit. Without that party, the lawsuit can not be adjudicated. 

Necessary parties are those who may be a party to the suit, but there is no relief claim from him. The presence of the parties involved is for the court to issue an effective and complete decree to adjudicate the plaintiff’s claim.

The court may dismiss the case in the absence of necessary parties, as it will not be able to make an effective decision. The plaintiff must, therefore, plead with all parties from which he claims relief from the claim.

Accordingly, the complainant must impose relief in the suit on all parties from whom claims. But a suit for unnecessary parties can never be dismissed.

According to the judgment of  Kasturi v. Iyyamperumal and Ors (AIR 2005 SUPREME COURT 2813), It has been held that two tests are to be carried out in order to determine who is a necessary party. Tests are-( 1) in view of the disputes involved in the proceedings there must be a right to any relief against that party (2) no successful judgment can be passed in the absence of such a party.

Mohammad Subhan vs Dr. Misbahuddin Ahmad And Ors. (1970 (3) WLN 706), The High Court of Rajasthan has observed that CPC Order 1, Rule 10, Makes a distinction between persons who should have been joined as plaintiffs or defendants and those without whose presence the matter can not be fully resolved in the suit

Who is a proper party in a suit?

A proper party means that type of party that is not necessary. Still, that party’s presentation enables the court to pronounce a suit’s proper, practical judgment. Here, we should know that if a party does not find it proper or necessary in the lawsuit, the court can not imply a party against the plaintiff’s wishes. The suit can not be dismissed in the absence of a non-necessary party. 

In other words, a proper party means that a person who is a necessary party to an action and presents the case to that party may make it possible for the court to give an effective decision on the dispute, which is mainly involved in the case.

Can the court order direct to add a party?

Order 1 Rule 10 of the Rules provides that the court may add the parties or persons necessary to appear at any stage of the proceedings to enable the court to decide and resolve all issues effectively and comprehensively.

Order 1 Rule 10(2) gives the Court discretion to deal with all cases of defect of the parties and does not affect the failure of the plaintiff to keep the necessary parties on record. The question of the establishment of a party must be decided based on Rule 10 of Order 1, which provides that only a necessary or proper party may be added.

One necessary party is without which no order can be imposed effectively. A party by itself is one in the absence of which an effective order may be placed but whose presence is necessary for a full and final decision to be taken on the matter involved in the proceedings. The addition of parties is usually not a matter of original jurisdiction of the court but of judicial discretion which must be exercised in the view of all the facts and circumstances of a particular case.

In the case of Committee of Management, Ratan Muni Jain Inter College and another vs. III Additional Civil Judge, Agra and other (AIR 1995 ALLAHABAD 7), The Allahabad High Court observed that the doctrine of dominus litus should not be misunderstood in the matter of impleading the parties, because it is the duty of the court to ensure that if a person is a necessary party to determine the real matter in dispute, that person may be ordered by the court to be put on trial. The mere fact that the plaintiff does not choose to advise a person is not sufficient to reject the request for his or her involvement. The provisions of O.1, R.10(2), C.P.C. are very broad and the powers of the court are equally broad. Even without an application to be made as a party, the court may, at any stage of the proceedings, order the addition of the name of any party who should have been joined either as a plaintiff or as a defendant or whose presence before the court may be necessary in order to enable the Court to take a full and effective decision and to settle all the issues involved in the case.

In the case of Singheshwar Rai Petitioner v. Babulal Rai and another (AIR 1980 PATNA 187), The High Court held that the power of the Court to add a party as defendant The wishes of the plaintiff is immaterial if the court considers that the presence of the party is necessary for the adjudication of all the issues involved in the suit without altering its nature – Expression ‘issues involved in the suit’ can not be read as issues involving the parties to the suit.

Institution of the suit under the provision of section 26 and Order 4

Section 26 and Order 4 of the CPC deal with the Institution of this suit. We refer to order 1 of the CPC, which is related to the party of the suit. It also provides the criteria to the party of the suit, where they add, delete, substitute, and join. It also provides the provisions to take an objection for non-joiner or miss- jointer of the parties in the suit.

Parties to the suit under the provision of order 1 of the CPC

Order one of this act describes the subject of the parties, such as joiner non-jointer parties and, in some circumstances, with the joinder of the cause of action. The joinder of parties means those persons can be joined as plaintiffs in the suit and joinder of defendants in the suit according to the provision of order 1 rule 3.

The common question that comes to our mind is who can join as a defendant?

All those persons can be joined as defendants in the suit if the right of relief is accrued under the same act for the transaction if the allegation continues to exist in the suit. The individual suits would be filed against that person with a similar cause of action, and the question of law or the fact of the case in that situation, all aggrieved parties can join as defendants.

Miss-joinder or non-joinder parties under the provision of order 1 Rule 9

Order 1, rule 9 of the CPC deals with the miss-joiner or non-render party in the suit. According to this provision, the suit cannot be defeated on the grounds of the miss-joiner or non-joiner party.
On the other hand, the court may deal with the controversy of the rights and interests of the parties that have already brought on the record of the suit. A person who is necessarily required to add a party to the suit is a necessary and proper party, and if that person is not joined as a party in the suit, it is a case of non-joinder of the party in the suit. In contrast, if more than two people join as a plaintiff or defendant, there is no necessary party or proper parties in the suit, and it is a case of misjoinder of the party in the suit.