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Mohammad Yaseen Shah Vs. Ghulam Nabi Rather and Ors. - (High Court of Jammu and Kashmir) (07 Sep 2018)

If a 'necessary party' is not impleaded, the suit itself is liable to be dismissed



In instant matter, challenge is thrown to the order passed by the trial Court on an application under Order I Rule 10 of the Code of Civil Procedure, 1908 (CPC), filed by the Respondent no. 5. By the impugned order, the learned trial Court allowed the application and arrayed the Respondent no. 5 as the party Defendant in the civil suit. It has been stated on behalf of the Petitioner that, trial Court without adverting to the core issues germane for deciding the application for impleadment as a party Defendant to a Suit and in complete ignorantia of law as the Court has no jurisdiction to add a party unless it is a necessary party, which is not the case at all in the present case.

The general rule in regard to the impleadment of the parties is that, the Plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. Consequently, a person who is not a party has no right to be impleaded against the wishes of the Plaintiff. But this general rule is subject to the provisions of Order I Rule 10(2) of the CPC, which provides for impleadment of proper or necessary parties. The said provision makes it clear that, a Court may, at any stage of the proceedings, including the suits for specific performance, either upon or even without any application, and on such terms as may appear to it to be just, direct adding of any person who ought to have been joined as Plaintiff or Defendant, but not added; or any person whose presence before the Court may be necessary in order to enable the Court to effectively and completely adjudicate upon and settle the question involved in the suit.

The Court is given the discretion to add as a party any person who is found to be a necessary party or proper party. 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. If a 'necessary party' is not impleaded, the suit itself is liable to be dismissed.

A 'proper party' is a party who, though not a necessary party, is a person whose presence would enable the Court to completely, effectively and adequately adjudicate upon all matters in disputes in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the Court has no jurisdiction to implead him, against the wishes of the plaintiff. The fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the Plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance. In the present case, the learned Trial Court has passed a well-reasoned order, impugned herein and given the above discussion, the same need not be interfered with. Revision petition dismissed.


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