S.99 CPC | Non-Joinder Of 'Necessary Party' Is Ground To Reverse Or Substantially Vary A Decree In Appeal Or Remand The Suit: Calcutta High Court

The Calcutta High Court on Tuesday ruled that non-joinder of a 'necessary party' is a ground to reverse or substantially vary a decree in appeal and can itself be a ground to remand a suit, after setting aside the decree passed in such suit, in an appropriate case. The rationale guiding the decision of the Court was that the plain statutory language of Section 99 of CPC barred the reversal, substantial varying or remanding of a decree in appeal on account of any misjoinder or non-joinder of the 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, however subject to the proviso that the said provision would not apply to non-joinder of necessary parties. The Court accordingly deduced that since such general rule was not statutorily contemplated to apply to suit proceedings concerning non-joinder of a necessary party, such non-joinder by itself would be a ground to reverse or substantially vary or remand a decree in appeal. The Court further observed that the statutory scheme of Order I Rules 9 and 13 read with Section 99 contemplate the non-joinder of necessary parties to be a ground for dismissal of suit and therefore stood on a different footing than the non-joinder of parties. The instant proceedings arise out of an appeal preferred against an order of a lower dismissing a suit which was filed for recovery of khas possession after eviction of trespassers as well as for mandatory injunction. Defendants specifically contended that the suit was barred on account of mis-joinder of cause of action and also by the provisions of Order 1 Rule 8 CPC since all trespassers, members of the All India Trinamool Congress ('AITC"), Sahapur East Branch, had not been made parties to the said suit proceedings. The instant appeal was preferred by the plaintiff to the suit contending that the lower court had dismissed the suit on the basis that the suit was bad for non-joinder of necessary parties without framing any issue in that respect and that the lower court had arrived at an erroneous conclusion that AITC, Sahapur East was a necessary party. Counsels for the plaintiff/appellant contended that such a conclusion arrived upon by the lower court was erroneous as the AITC is not a legal entity and by failing to appreciate that the the trespassing respondents being members thereof are necessary parties. Plaintiff further submitted that while the respondents/defendants, while forcibly taking possession of the suit property had taken the name of one political party, however at the time of argument, the respondents took the plea that AITC, Sahapur was in possession of the suit property. Plaintiff assailed the lower court order by submitting that as there was a doubt against whom, he would get relief,, the defendants were made parties and the lower court ought have given opportunity to add AITC, Sahapur as a necessary party to the said suit. Counsels for the plaintiff further prayed for a remand of the suit for deciding the issues afresh and in support of its contentions, placed reliance upon the decision of the Supreme Court in Pratima Sinhas v. Shashi Kumar Narain Sinhas, reported in (2004) 13 SCC 599. Counsels for the respondents argued that the plaintiff with a mala fide intention had made the defendants as parties to the suit in spite of having knowledge that it was the AITC Sahapur Unit which was is in possession of the suit property and that as the lower court had dismissed the suit by a reasoned order, the Court had no scope to interfere with the same. In support of its arguments, the respondents placed reliance upon the decision of the Supreme Court in Moreshar Yadaorao Mahajan v. Vyankateshj Sitaram Bhedi (D) Through LRS. & Ors. After hearing the rival contentions of parties, the Division Bench of Justices Tapabrata Chakraborty and Partha Sarathi Chatterjee stressed on the necessity of framing of issues by the trial court as being an important stage which determines the scope of the trial and defined "issues" as those facts which have been alleged by one party and either denied or not admitted by the other party. The Court ruled: "Admittedly, no issue had been framed as to whether suit was bad for non-joinder of necessary party but the learned Court below had dismissed the suit on such issue. Framing of issues is an important stage at which the scope of the trial is determined. Basically, the correct decision of civil lis largely depends on correct framing of issues, correctly determining the real points in controversy which need to be decided. 'Issue' means a point in question at the conclusion of the pleading between contending parties in an action and issues are to be framed in respect only of those facts which have been alleged by one party and either denied or not admitted by the other party and duty of framing...

S.99 CPC | Non-Joinder Of 'Necessary Party' Is Ground To Reverse Or Substantially Vary A Decree In Appeal Or Remand The Suit: Calcutta High Court

SAMRIDDHA SEN

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