Order 1 of the Civil Procedure Code, 1908[1] addresses the varied issues concerned with the first and most prominent ingredient of civil suits: parties to a suit. This encompasses questions of addition, deletion, substitution, transposition as well as non-joinder and misjoinder of parties to a suit. The parties in a civil suit are the plaintiff i.e. the person who brings an action for his rights and the defendant i.e. the person against whom such rights are claimed. However, there may arise a situation wherein, upon institution of a suit, it may be realised that in addition to the existing parties in the suit, there may be persons whose presence may be material to effectively determine the questions arising from the subject-matter of the suit. Such situations are rectified by “joinder of parties[2]” either upon application by an existing party to the suit or suo motu by the court before which the civil suit is in lite.
The concept of “joinder of parties” includes non-joinder and misjoinder of parties to a suit and means the inclusion or exclusion of particular persons in a suit. Such joinder of parties is not a matter of initial jurisdiction of the court but a question of judicial discretion which has to be exercised in view of all the facts and circumstances of a case.[3]
Considerations to be borne when exercising the powers of joinder of parties
The powers granted to a court regarding joining of parties are very wide and extensive under Rule 10(2) of Order 1[4] and the following two considerations must be borne in mind while exercising these powers:
(i) The plaintiff is dominus litis i.e. he is the best judge of his own interest. Therefore, it is upon the plaintiff to choose his opponent from whom relief is claimed. Ordinarily, the court should not compel the plaintiff to fight against a person whom he does not desire to fight and from whom he claims no relief; and
(ii) If the court is satisfied that presence of a particular person is necessary to effectively and completely adjudicate all the disputes between the parties, irrespective of the wishes of the plaintiff, the court may exercise the power and join a person as a party to the suit.
The line has been drawn on a wider construction of the rule between the direct interest or the legal interest and commercial interest. It is, therefore, necessary that the person must be directly or legally interested in the action in the answer i.e. he can say that the litigation may lead to a result which will affect him legally that is by curtailing his legal rights.[5] The question to be posed is whether there is curtailment or extinction of a legal right of the person.
The true test lies not so much in an analysis of what are the constituents of the applicants’ rights, but rather in what would be the result on the subject-matter of the action if those rights could be established.[6] The test is “may the order for which the plaintiff is asking directly affect the intervener in the enjoyment of his legal rights”.[7]
Based upon these considerations, the court shall exercise its powers of joinder at any stage of the proceeding either upon an application by a party to the suit or suo motu on such terms and conditions as the court may deem just.
Doctrine of necessary and proper parties in essence
The doctrine of necessary and proper parties is eminent when determining this question of joinder or non-joinder of parties. There is a vital distinction between a necessary and a proper party to a suit. A necessary party is one whose presence is a sine qua non to the constitution of the suit and without whom, no effective order can be passed with respect to the questions arising before the court.[8] In contradistinction to this, a proper party is one in whose absence although an effective order can be passed, but whose presence is necessary for a complete and final decision on the questions involved in the proceeding.[9]
Two tests have been laid down for determining the question whether a particular party is a necessary party to a proceeding[10]:
(i) there must be a right to some relief against such party in respect of the matter involved in the proceeding in question; and
(ii) it should not be possible to pass an effective decree in absence of such a party.
In light of impleading necessary parties, regard must be had that joinder of parties shall not result in alteration of nature and character of the suit. For instance, in a suit for specific performance of a contract for sale, the necessary parties would be the parties to the contract or if they are dead, their legal representatives as also a person who had purchased contracted property from the vendor.[11] However, a person who claims independently or adversely to the claim of the vendor would not constitute a necessary party as it would change the nature of the suit. The proper course of action for such person would be to institute a separate suit for declaration of title.[12]
The abovementioned considerations were reiterated by the Supreme Court in Gurmit Singh Bhatia v. Kiran Kant Robinson[13] and it was observed that:
“A third-party or a stranger cannot be added in a suit for specific performance, merely in order to find out who is in possession of the contracted property or to avoid multiplicity of the suits. A third-party or a stranger to a contract cannot be added so as to convert a suit of one character into a suit of different character.”
The very object of the “doctrine of necessary and proper” parties is to include all such parties as would be necessary grant an effective relief for the issues that are pendente lite in the matter at hand. Therefore, where the issues before the Court pertain to a particular subject- matter, no person can be joined as a party merely on the ground that his claims relate to the subject-matter of the case but requires framing of additional issues. The mere fact that a fresh litigation could be avoided is no ground to invoke the power under Rule 10 of Order 1[14] in such cases.[15]
For instance, in a suit for specific performance of contract for sale between Party A (i.e. vendor) and Party B (i.e. purchaser) who are the parties to such contract would be necessary parties. While a person C, who claims a title adverse to the title of the Vendor (i.e. Party A) would not constitute a necessary party as this would alter the nature of present suit and result in conversion of a suit for specific performance of contract for sale into a suit for declaration of title, thereby enlarging the scope of suit. The effective remedy for Person C in such case would be to institute a separate suit and file a fresh claim against Party A.
Therefore, it may be concluded that persons, stranger to the contract, would also be strangers to the proceeding in that suit.
“Who constitutes a necessary party?” in light of judicial precedents
The principle of natural justice “audi alteram partem” forms the quintessential basis of Order 1 Rule 9[16], elucidating that, “No order can be passed behind the back of a person adversely affecting him and such an order if passed, is liable to be ignored being not binding on such a party as the same has been passed in violation of the principles of natural justice.”[17]
Therefore, it is well-settled principle consistent with natural justice that if some persons are likely to be affected on account of setting aside a decision enuring to their benefit, the court should not embark upon the consideration and the correctness of such decision in the absence of such persons.[18]
Where the plaintiff sued for possession and declaration that the auction proceedings and the subsequent conveyance by auction purchaser to defendant were void in law under a certain Act, it was held by the Supreme Court, that the liquidator was a necessary party and in his absence the suit for declaration must fail.[19]
In a suit filed against a doctor owing to his medical negligence, the doctor was held to be a necessary party since relief was claimed from him. However, the insurance company from whom the insurance had been obtained was held as neither a necessary nor a proper party, since no relief had been claimed from the said company.[20]
In a land acquisition proceeding, the local authority is a necessary party in the proceedings before the Reference Court and is entitled to be impleaded as a party in those proceedings wherein it can defend the determination of the amount of compensation by the Collector and oppose enhancement of the said amount and also adduce evidence in that regard[21].
An unsuccessful candidate challenging the selection as far as the service jurisprudence is concerned is bound to make the selected candidates parties. In Prabodh Verma v. State of U.P.[22] and Tridip Kumar Dingal v. State of W.B.[23], it has been held that “if a person challenges the selection process, successful candidates or at least some of them are necessary parties”. The aforesaid decisions do not lay down as a proposition of law that in every case when a termination is challenged, the affected person has to be made a party. What has been stated is when one challenges a provision as ultra vires the persons who are likely to be affected, some of them should be made parties in a representative capacity.
Furthermore, it must be reiterated that although the provisions of Civil Procedure Code do not strictly and holistically apply to writ petitions, the principle underlying Order 1 Rule 9 shall be applicable to writ petitions.
Statutory exceptions to Rule 10 of Order 1
There are certain special statutes which clearly provide as to who are the persons to be made as parties in the proceeding/suit filed under that special statute. For example, the provisions under Section 82 of Representation of the People Act, 1951[24] clarify the persons that are to be made parties in an election petition. There are other special statutes which also postulate who can be joined as parties in the proceedings instituted under that special statute, otherwise the provisions of CPC would be applicable.
Hence, it must be concluded that provisions of Rule 10 of Order 1 of the Civil Procedure Code, 1908[25] must be construed and interpreted harmoniously in addition to and not in derogation of any express statutory provision in this regard. The Civil Procedure Code is only a general law governing the procedure to be followed in case of civil suits and hence, when an express provision is made in any other statute about the joinder of additional parties or such other procedure to be followed, such special procedure shall prevail over the general law governing civil suits. This is based on well-founded rule of interpretation of statutes “generalia specialibus non derogant”.
Difference between non-joinder and misjoinder of parties
Where a person, who is a necessary or a proper party to a suit has not been joined as party to such suit, it is a case of non-joinder. Conversely, if two or more persons are joined as plaintiff or defendants in a suit in contravention to Rules 1[26] and 3[27] of Order 1 of the Civil Procedure Code, 1908 and they are neither necessary nor proper parties, it is a case of “misjoinder” of parties.
All objections on the ground of non-joinder or misjoinder of parties shall be taken at the earliest possible opportunity and always before settlement of issues, unless the ground of objection has subsequently arisen[28]. Any such objection not so taken shall be deemed as a waiver.[29]
Although a defect of non-joinder is serious, it is not incurable and the court may pass appropriate directions to join a person if it believes that such a person is a necessary party.
A suit cannot be dismissed only on the ground of non-joinder or misjoinder of parties subject to the exception that non-joinder of a necessary party may render fatal to the case[30]. Therefore, the court cannot dismiss a suit solely based upon the ground that a party, be that a proper party, has not been joined or any unwarranted person has been joined erroneously in the suit unless such party is a necessary party in whose absence an effective order cannot be passed in the questions arising in the suit. The principles enshrined in the proviso to Order 1 Rule 9 of the Civil Procedure Code, 1908 provide that impleadment of a necessary party is mandatory and in case of non-joinder of necessary party, the plaintiff may not be entitled for the relief sought by him.
This submission highlights the importance of the doctrine of necessary and proper parties when instituting a civil suit and holistically elucidates its consideration in all matters such as service matters, writs, suits for specific performance, suits for declaration. The doctrine of necessary and proper parties is a preliminary issue to be dealt with prior to any other question of law or fact since it shall determine the very sanctity of the trial due to its roots in the principles of natural justice. Any ignorance of this principle shall vitiate the effectiveness of the adjudication as it would cause such trial to be conducted in absentia of persons who were necessary for a fair, effective and complete adjudication of the questions involved in such suit.
*LLM law student of Symbiosis Law College, Pune and qualified Company Secretary.
[1] <http://www.scconline.com/DocumentLink/EN5r67DU>
[2]Rr. 1 and 3, Or. 1 CPC, 1908.
[3]Razia Begum v. Sahebzadi Anwar Begum, 1959 SCR 1111.
[4] <http://www.scconline.com/DocumentLink/q1lC86vn>.
[5] Razia Begum v. Sahebzadi Anwar Begum, 1959 SCR 1111.
[6]United States of America v. Dollfus Mieg et Cie SA, 1952 AC 582 : (1950) 2 All ER 605, 611
[7] Ibid.
[8] Vidur Impex and Traders (P) Ltd. v. Tosh Apartments (P) Ltd., (2012) 8 SCC 384.
[9] Ibid.
[10] Kasturi v. Iyyamperumal, (2005) 6 SCC 733, 738.
[11] Kasturi v. Iyyamperumal, (2005) 6 SCC 733.
[12]Shri Swastik Developers v. Saket Kumar Jain, 2013 SCC OnLine Bom 897.
[14] <http://www.scconline.com/DocumentLink/q1lC86vn>.
[15] Ramesh Hirachand Kundanmal v. Municipal Corpn. of Greater Bombay, (1992) 2 SCC 524, 528.
[16] <http://www.scconline.com/DocumentLink/LFx2EvM3>.
[17]J.S. Yadav v. State of U.P., (2011) 6 SCC 570.
[18] Poonam v. State of U.P., (2016) 2 SCC 779.
[19]Vishnu Mahadeo Pendse v. Rajen Textile Mills (P) Ltd., (1975) 2 SCC 144.
[20] Praveen Bhatia v. M. Ghosh, 1989 SCC OnLine Del 8.
[21]U.P. Awas Evam Vikas Parishad v. Gyan Devi, (1995) 2 SCC 326.
[24] <http://www.scconline.com/DocumentLink/Hdzyo7ZB>.
[25] <http://www.scconline.com/DocumentLink/q1lC86vn>.
[26] <http://www.scconline.com/DocumentLink/6Deyg1Zj>.