, pub-7478144801409215, DIRECT, f08c47fec0942fa0, pub-7478144801409215, DIRECT, f08c47fec0942fa0

Necessary party and Proper party (Short notes)

June 16, 2021

Introduction :- It would be convenient at the outset to ascertain who are necessary or proper parties in a proceeding. The law on the subject is well settled. Or. 1 Rr. 10 and 9 A of CPC:- A necessary party is the person who ought to be joined as party to the suit and in whose absence an effective decree cannot be passed by the court. A proper party is a person whose presence would enable the court to completely, effectively and properly adjudicate upon all matters and issues, though he may not be a person in favour of or against whom a decree is to be made. (Para 41), Vidur Impex & Traders (P) Ltd. v. Tosh Apartments (P) Ltd.(2012) 8 SCC 384 : (2012) 4 SCC (Civ) 1 : AIR 2012 SC 2925.

The Concept of Necessary Party and Property:- It is enough if we state the principle. A necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in this proceeding. See. Udit Narain Singh Malpaharia v Additional Member Board of Revenue, Bihar and another[(2011) 6 SCC 570]. See also. Poonam v. State of U.P., (2016) 2 SCC 779.

J.S. Yadav Vs State of U.P. & Anr, (2011) 6 SCC 570, in Paragraph 31 it has been held thus:-

“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. The principles enshrined in the proviso to Order 1 Rule 9 of the Code of Civil Procedure, 1908 provide that impleadment of a necessary party is mandatory and in case of non-joinder of necessary party, the petitioner-plaintiff may not be entitled for the relief sought by him. The litigant has to ensure that the necessary party is before the court, be it a plaintiff or a defendant, otherwise the proceedings will have to fail. In service jurisprudence if an unsuccessful candidate challenges the selection process, he is bound to implead at least some of the successful candidates in representative capacity. In case the services of a person are terminated and another person is appointed at his place, in order to get relief, the person appointed at his place is the necessary party for the reason that even if the petitioner-plaintiff succeeds, it may not be possible for the Court to issue direction to accommodate the petitioner without removing the person who filled up the post manned by the petitioner- plaintiff. (Vide Prabodh Verma V. State of U.P, Ishwar Singh Vs. Kuldip Singh, Tridip Kumar Dingal Vs. State of W.B, State of Assam V. Union of India, and Public Service Commission V. Mamta Bishst),  More so, the public exchequer cannot be burdened with the liability to pay the salary of two persons against one sanctioned post”.

Some Important cases:-

J.S. Yadav v. State of U.P.(2011) 6 SCC 570

Vishnu Mahadeo Pendse v. Rajen Textile Mills (P) Ltd.(1975) 2 SCC 144

Vidur Impex and Traders (P) Ltd. v. Tosh Apartments (P) Ltd.(2012) 8 SCC 384 

Kasturi v. Iyyamperumal(2005) 6 SCC 733

Razia Begum v. Sahebzadi Anwar Begum1959 SCR 1111

Leave a ReplyCancel reply The Best law website for legal fraternity. Dismiss, pub-7478144801409215, DIRECT, f08c47fec0942fa0