What do you understand by ‘Necessary Party’ and ‘Proper Party’? Whether a suit shall be defeated by the reason of misjoinder or non-Joinder of Parties. This question was asked in Madhya Pradesh Judicial Services 2011.
NECESSARY AND PROPER PARTY | ABSENCE & ITS EFFECT : In absence of a NECESSARY PARTY no decree can be passed, while in absence of a PROPER PARTY a decree can be passed, though the latter presence will assist the court to adjudicate more “effectually and completely”.
MEANING :
A necessary party is one whose presence is indispensable to the constitution of the suit, against whom the relief is sought and without whom no effective order can be passed.
A proper party is one in whose absence an effective order can be passed, but whose presence is necessary for a complete and final decision on the question involved in the proceeding.
Example :
All sharers are necessary party in a suit for partition.
In a suit to set aside a public auction, purchaser of property in that public auction is a necessary party.
In a suit for possession by the landlord against his tenant, sub-tenant is a proper party.
PRINCIPLE UNDER RULE 8 : Where several persons are interested in a suit, it is not always necessary that all of them should be joined as plaintiffs or defendants. Rule 8 of Order 1 applies to such suits and it is sufficient if some of them are joined as plaintiffs or defendants, as the case may be.
NON-JOINDER/MISJOINDER OF PARTIES | RULE 9 & RULE 13 OF ORDER I
GENERAL RULE : 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.
PROVISO : Provided that nothing in this rule shall apply to non-joinder of a necessary party.
B. Prabhakar Rao & Ors. Etc vs State Of Andhra Pradesh 1986 AIR 210
When the interest of the persons who were not joined as parties were
identical with those persons who were before the court and
if their interest is sufficiently and well represented,
then the suit or appeal is not liable to be dismissed on that ground.
RULE 13 | OBJECTIONS : All objections on the ground of nonjoinder or misjoinder of parties shall be taken at the earliest possible opportunity and, in all cases where issues are settled, at or before such settlement, unless the ground of objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived.
