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Suit Is Liable To Be Dismissed If A "Necessary Party" Is Not Impleaded : Supreme Court

Ashok KM
28 Sep 2022 6:20 AM GMT
Suit Is Liable To Be Dismissed If A Necessary Party Is Not Impleaded : Supreme Court
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The Supreme Court observed that a suit is liable to be dismissed if a "necessary party" is not impleaded.For being a necessary party, according to the court, the twin test has to be satisfied (1) there must be a right to some relief against such party in respect of the controversies involved in the proceedings (2) that no effective decree can be passed in the absence of such a party.Order I...

The Supreme Court observed that a suit is liable to be dismissed if a "necessary party" is not impleaded.

For being a necessary party, according to the court, the twin test has to be satisfied (1) there must be a right to some relief against such party in respect of the controversies involved in the proceedings (2) that no effective decree can be passed in the absence of such a party.

Order I Rule 9 provides that 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. However, the proviso to this Rule clarifies that nothing in this rule shall apply to non-joinder of a necessary party.

In this case, the Trial Court decreed a suit for specific performance and also rejected the contention that defendant's sons and wife are necessary parties to this suit and their non-joinder is fettled to the suit. The First Appellate Court upheld the decree. In Second Appeal, the High Court set aside the decree.

In appeal before the Apex Court, Advocate Rahul Chitnis, who appeared on behalf of the appellant, contended that since the contract was between the plaintiff and the defendant, it was not at all necessary to implead the defendant's wife or sons as party defendants. Senior Advocate Harin P. Raval,  appearing on behalf of the respondents, on the other hand, contended that, that the plaintiff himself has admitted that the suit property was owned by the defendant, his wife and three sons and thus in view of this admission, the suit filed by the plaintiff was itself not tenable. 

The court observed that since the suit property was jointly owned by the defendant along with his wife and three sons, an effective decree could not have been passed affecting the rights of the defendant's wife and three sons without impleading them. Even in spite of the defendant taking an objection in that regard, the plaintiff has chosen not to implead the defendant's wife and three sons as party defendants, the court noted.

While dismissing the appeal, the bench observed:

"It can thus be seen that what has been held by this Court is that for being a necessary party, the twin test has to be satisfied. The first one is that there must be a right to some relief against such party in respect of the controversies involved in the proceedings. The second one is that no effective decree can be passed in the absence of such a party.. In view of the plaintiff's own admission that the suit property was jointly owned by the defendant, his wife and three sons, no effective decree could have been passed in their absence."

Case details

Moreshar Yadaorao Mahajan Vs Vyankatesh Sitaram Bhedi (D) | 2022 LiveLaw (SC) 802 | CA 5755-5756 OF 2011| 27 September 2022 | Justices BR Gavai and CT Ravikumar

Headnotes

Code of Civil Procedure, 1973 ; Order I Rule 9 - 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. It has been held that if a "necessary party" is not impleaded, the suit itself is liable to be dismissed - For being a necessary party, the twin test has to be satisfied. The first one is that there must be a right to some relief against such party in respect of the controversies involved in the proceedings. The second one is that no effective decree can be passed in the absence of such a party. (Para 17-20)

Specific Relief Act, 1963 - Suit for specific performance - When suit property was jointly owned by the defendant along with his wife and three sons, an effective decree could not have been passed affecting the rights of the defendant's wife and three sons without impleading them. (Para 19)

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