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TITLE OF THE RESEARCH PAPER

NON JOINDER OF PROPER PARTY IN MONEY SUITS: JUDICIAL APPROACH

By

Name of the Student Sk. Roshan

Roll No. 2018 LLb083

Semester: 5th

Name of the Program: 5 year (B.A., LL.B. / LL.M.)

Name of the Faculty Member BHAGYALAKSHMI Ma’am

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

NYAYAPRASTHA “, SABBAVARAM, VISAKHAPATNAM - 531035
ANDHRA PRADESH, INDIA

Date of Submission: 14-01-2021

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ACKNOWLEDGEMENT

I would sincerely forward my heartfelt appreciation to our respected Civil Procedure Code
professor, Prof. Bhagyalakshmi Ma’am for giving me a golden opportunity to take up this
Research project regarding “NON JOINDER OF PROPER PARTY IN MONEY SUITS:
JUDICIAL APPROACH”. I have tried my best to collect information about the Research
project in various possible ways to depict clear picture about the given research project topic.
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TABLE OF CONTENTS

1. TABLE OF CASES………………………………………………………………04

2. SYNOPSIS………………………………………………………………………..05

3. INTRODUCTION………………………………………………………………..07

4. ORDER-I RULE-9……………………………………………………………….07

5. NON-JOINDER DEFINITION………………………………………………….07

6. PROCEDURE TO BE FOLLOWED IN CASE OF NON-JOINDER………..08

7. CONSEQUENCES OF NON-JOINDER OF NECESSARY PARTIES………..08

8. CASE ANALYSIS-01……………………………………………………………….09

9. CASE ANALYSIS-02………………………………………………………………12

10. CASE ANALYSIS-03………………………………………………………………15

11. CASE ANALYSIS-04………………………………………………………………18

12. CASE ANALYSIS-05………………………………………………………………20

13. CONCLUSION……………………………………………………………………..23

14. BIBLIOGRAPHY………………………………………………………………….23
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TABLE OF CASES

1. Bengal Enamel Works Ltd v. Apejay (1970) ILR 1 Cal 459

Private Ltd
2. Laliteshwar Prasad Sahi v. Bateswar AIR 1968 SC 580(585)
Prasad
3. Ramprasad & Ors v. Jagdish Prasad (1956) 26 AWR 747
& Ors
4. Keshardeo Chamria v. Radha Kissen 1953 ALJ 101
Chamria
5. Kubhlal Upadhyaya v. Jhapsi Kundu AIR 1961 Pat 28
6. Aneshwar Prasad & Ors v. Misrilall AIR 1924 Pat 613
& Ors
7. Radheylal Somsingh v. Ratansingh 1977 MPLJ 335
Kishan Singh & Ors
8. Eda Mary v. Yedla Elisebeth Rani & 2019 (1) ALT 273
Ors

SYNOPSIS
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INTRODUCTION:

The civil suit requires the presence of the opposing parties. The opposing parties are required
for the process of adjudication. The parties must be distinguished in the form of necessary
and non-necessary. Necessary parties are mainly responsible for claiming the relief. Non-
necessary parties are those parties from whom the relief cannot be claimed but they may be
the party to the suit. The presence of necessary parties is mainly required for adjudicating the
matters.

RESEARCH QUESTION:

1. Whether the laws relating to the non-joinders are working affectively in order to
adjudicate the suit?

OBJECTIVE OF THE STUDY

1. To critically study the concept of non-joinder of the proper party to the money suit.
2. To study the concept of how the suit can be adjudicated without the presence of the
non-joinder.

SCOPE OF THE STUDY:

The scope of the study is restricted to the concept of Non-joinder of proper party to the
money suit and also by comparing the position with respect to other countries.

SIGNIFICANCE OF THE STUDY:

To understand the concept of non-joinder of proper party to the money suit and also how the
matter can be adjudicated when the necessary party is not present in the suit.
RESEARCH METHODOLOGY:
NATURE OF THE STUDY: The study conducted is of doctrinal in nature and it is a
mixture of analytical, descriptive and explanatory.
LITERATURE REVIEW:
1. Joinder/ Misjoinder/ Non-Joinder of parties in Civil suits, Nisha Nandini,
Lawyered, August 11th, 2020.
The civil suit will be instituted by the parties where the suit is filed for claiming the
relief. The party’s presence is mainly required for the process of adjudication. The
party who files the case and claim relief from the other party are considered as the
plaintiff. Both the parties are essential for deciding the suit and the nature of the suit
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will be decided according to the jurisdiction and the competent court decides the
rights and liabilities.

NON JOINDER OF PROPER PARTY IN MONEY SUITS: JUDICIAL APPROACH

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INTRODUCTION:

The presence of opposing parties is one of the essential requirements of any civil suit. But all
parties are not necessary for the suit to be adjudicated upon. Therefore, necessary and non-
necessary parties have to be distinguished between. Necessary Parties are those parties from
whom relief is claimed. Non-necessary Parties are those parties who may be party to the suit,
but from whom no relief has been claimed. The presence of necessary parties is obviously
required for the court to adjudicate and pass an effective and complete decree granting relief
to the plaintiff. However, the same does not hold good for non-necessary parties. In the
absence of necessary parties, the court may dismiss the suit, as it shall not be able to pass an
effective decree. But a suit can never be dismissed due to absence of non-necessary parties.
The underlying logic is that the burden of providing relief should rest upon all the defendants.
It would be unfair if only some of the defendants had to discharge this burden. Therefore, the
plaintiff has to implead all those parties from whom he is claiming relief to the suit.

ORDER-1 RULE-9- MISJOINDER AND NON-JOINDER

No suit shall be defeated be defeated by reason of the misjoinder or non-joinder 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.

Provided that nothing in this rule shall apply to non-joinder of a necessary party.

NON-JOINDER:

Non-joinder means an omission to join some person as a party to a suit, whether as plaintiff
or as defendant who ought to have been joined according to the law. Non-joinder of parties
refers to a situation in which those parties whose presence is essential and in whose absence
no effective decree can be passed by the court have not been impleaded. They are those
parties who should have been joined under Order 1, Rule 10 (2) of the Code. In contrast,
presence of proper parties is needed only for the court's convenience in deciding the dispute.
The court shall in their presence only be able to decide the dispute completely and
effectively.

Procedure to be followed:
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The general principle of law is that the plea of non-joinder should be raised at the earliest
available opportunity. However, an exception is partition suits, in which the plea of non-
joinder of parties can be raised at any point of time. The reason for this, as laid down in
Shanmugham v. Saraswati is that this materially affects the subject - matter involved in the
suit. The law however only assists the plaintiff on this point. So if he persistently refuses to
implead proper parties, the courts shall act contrary to dismiss the suit. In a civil suit it is the
plaintiff who has to claim relief. However, he has to implead the necessary parties to a suit.
Should he refuse to do so even after an objection is raised in this connection, the suit will be
dismissed?

Consequences of Non-joinder of necessary parties:

The absence of necessary party’s means those parties from whom relief is being claimed are
not present, due to which the court cannot pass any effective decree. In such circumstances,
the suit can but does not have to be dismissed. If found legally justifiable, the court should
grant the relief being claimed by the plaintiff by passing a decree between the parties actually
before it, so long as that can be done legally and effectively. The defendant can plead non -
joinder of parties by the plaintiff. However, he shall have to specify who those parties are and
what their interest is in the suit. The defendant has to claim a non-joinder of parties at the
earliest, in the written statement. However, he is also required to specify who are the parties
who he wants should be impleaded, and the rights claimed by them. Should he only give a
vague statement in this respect, it is not sufficient to dismiss the suit on the ground of non-
joinder of parties.

CASE ANALYSIS-01

BENGAL ENAMEL WORKS Ltd. v. APEJAY PRIVATE Ltd

Citation: (1970) ILR 1Cal459

Significance of the case:

This case mainly explains about the concept of non-joinder of proper party in money suits. It
was necessary and essential party from the beginning under Order-1, Rule-3 of the Code of
Civil Procedure and it could it could not be regarded as a mere party which could or could not
be joined under Order 1, Rule 10 of the Code of Civil Procedure nor could any decision be
given in its absence under Order 1, Rule 9 of the Code of Civil Procedure.
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Facts:

The Plaintiff company's case is that the Defendant company was at all material times a
registered stock-holder of the Iron and Steel Controller, Calcutta and that the Defendant was
liable and bound to sell iron and steel stocks at the direction of and at prices fixed by the said
Controller. The Controller directed the Defendant to deliver to the Plaintiff certain stocks of
iron and steel as alleged by the Plaintiff Company. The Plaintiff paid a sum of Rs. 7,47,452-
45 P. to the Defendant for the price of the iron and steel stocks during the period July 19,1962
and December 31, 1962. Particulars of these payments are set out in Schedule A to the plaint.
The delivery of these goods took place during August 6, 1962 and September 4, 1962. It is
alleged by the Plaintiff Company that such delivery was at prices to be fixed or fixed by the
said Steel Controller. On December 19, 1962, the Controller is said to have fixed the prices
payable by the Plaintiff in respect of those goods and it is the Plaintiff company's case that
the Defendant is entitled only to such price fixed by such Controller. On the basis of such
prices a sum of Rs. 6,62,885-38 P. became payable by the Plaintiff to the Defendant.
Therefore, the Plaintiff's case is that it has overpaid the Defendant to the extent off the sum of
Rs. 84,567-07 P. as per particulars given in the plaint. It is this sum of money that the
Plaintiff claims back from the Defendant.

Issues:

1. Is this suit bad for non-joinder of the Iron and Steel Controller?
2. Did the Defendant sell and deliver the goods in suit as alleged in paras. 1, 2, 3 and 4
of the plaint?
3. Was the Defendant appointed as the handling agent by the Iron and Steel Controller
and did the Defendant act only as such agent in the transactions in suit as stated in
paras. 1 and 2 of the written statement?
4. Were the prices mentioned in the Regularizing Orders of The Plaintiff dated October
15, 1962 and October 19/20, 1962, the agreed prices of the goods as alleged in para.
2(c) of the written, statement?

Plea of Respondents:

The Defendant denies in its written statement that there was any mistake of fact. The
Defendant also denies any acknowledgment or admission of liability. It pleads that the claim,
if any, is barred by limitation. It also pleads that the Plaintiff has no cause of action against
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the Defendant because the Defendant acted only as the agent of the Controller. The
Defendant took specifically the point that the suit was bad for non-joinder of the Government
and/or the Controller.

It is also the Defendant's case that these goods on arrival were delivered to the Plaintiff
Company at the rate of landed costs which was agreed to, accepted and paid by the Plaintiff
Company. In such circumstances, the Defendant states that it collected from the Plaintiff the
value of the price of the said goods delivered or sold to the Plaintiff at the rates fixed by the
Controller and which rates were prevailing when the Defendant collected such value from the
Plaintiff and at the time of delivery of those goods. It is part of the Defendant's case that any
price or rate alleged, to have been fixed subsequently by the Controller was not relevant of
the aforesaid transaction and that in any event if subsequent changes in the price fixed by the
Controller are to be taken into account, the final change has confirmed the landed cost rate.

Arguments:

Mr. M.N. Banerjee, Learned Counsel for the Plaintiff, had to contend against the provisions
of Section 230 of the Contract Act. That section provides that in the absence of any contract
to that effect, an agent cannot personally enforce the contract entered into by him on behalf of
his principal, nor is he personally bound by them. Because of this provision Mr. Shankar
Ghose, Learned Counsel for the Defendant, submits that in a contract of this nature the
Defendant was acting only as an agent for the convenience of the Steel Controller and he
cannot be personally bound by them Section 230 of the Contract Act makes three exceptions
to this rule and they are: (i) where the contract is made by an agent for the sale or purchase of
goods for a merchant resident abroad, (ii) where the agent does not disclose the name of his
principal and (iii) where the principal, though disclosed, cannot be sued. Mr. Ghose submits
that the Defendant in this case does not come within any of these three exceptions and
therefore, the Defendant cannot be made liable on this kind of a contract and it is only the
principal, who the Steel Controller is representing the Government of India, who is liable if at
all.

Mr. Ghose says that Mr. Banerjee's submission that the Plaintiff has not sued the Government
of India through the Steel Controller on the ground that the contract was bad under Article
229(1) of the Constitution, should not be sustained because that has never been the case of
the Plaintiff Company in the plaint. The Plaintiff's case in the plaint was that the Defendant
acted as a principal in the transaction as a stockist and seller of the goods and not as an agent.
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The Plaintiff Company chose that course in the plaint although it knew at the time of filing it
that there was this agency contract between the Defendant and the Government and although
the Government had described the Defendant as handling agent in its letter and
correspondence between the Plaintiff Company and the Government. Mr. Ghose, therefore,
says that if the Plaintiff Company had raised the question, many other facts would have come
to light including the question of ratification such as was pointed out by the Supreme-Court
in Laliteshwar Prosad Sahi v. Bateswar Prasad1.

Interpretation of the Court:

It will be appropriate to dispose of this application while deciding this issue of non-joinder.
This application for amendment is opposed both by the Defendant company as well as by the
Iron and Steel Controller proposed to be joined as a Defendant. No affidavit-in-opposition
has been filed by the Defendant company and the Steel Controller, but it has been recorded
that the allegations in the petition are not admitted. There are various objections raised to this
application for amendment. The first objection is that no notice under Section 80 of the Code
of Civil Procedure has been given to the Union of India intended to be joined as a party to
this suit

The Union of India in this case is vitally interested in the subject-matter of the suit. The
interest of the Union of India in this suit lies in the fact that--(a) One of the major
controversies here is the nature of the legal and jural relationship between the Plaintiff, the
Defendant and the Government of India representing the Iron and Steel Controller, raising the
question about the nature of contract, viz., whether the arrangement between the Plaintiff and
the Defendant was that between a principal and a principal or whether it was one of the
relationship between the principal dealing with an agent and the disclosed principal, (b) Then
again one of the defences in the suit from the beginning was that the excess for which the
claim for refund is made by the Plaintiff has been paid over by the Defendant acting as agent
of the Government of India and the excess has been handed over to the Iron and Steel
Controller. (c) Finally, the interest of the Union of India is plain even from Mr. Baherji's
submission that the Iron and Steel Controller has no right (i) to fix any rates Or price on the
16/11-8-6 and (ii) that he had no right to make the order of October 3, 1962, Ex. F.,

1
A.I.R. 1968 S.C. 580 (585)
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prospectively and not retrospectively. Both these questions and controversies vitally affect
the interests, rights and liabilities of the Union of India.

Final judgement:

It will not be inappropriate here at this point to refer to the provisions of the Code of Civil
Procedure contained in 0.1, Rule 3 and Order 1, Rule 9. Order 1, Rule 3 provides that all
persons may be joined as Defendants against whom any right to relief in respect of or arising
out of the same act or transaction or series of acts or transactions is alleged to exist. Order 1,
Rule 9 provides that no suit shall be defeated by reason of the misjoinder or non-joinder 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. It is well established that so far as
non-joinder of parties is concerned, a distinction has been drawn between non-joinder of a
person who ought to have been joined as a party and the non-joinder of a person whose
joinder is only a matter of convenience or expediency. This is the origin of the distinction
between necessary party and proper party. Having regard to the nature of the controversies
and issues in, this suit I have no hesitation in holding that in this case the Union of India
represented by the Steel Controller was a necessary and essential party from the beginning
and it could not be regarded as a mere party which could or could not be joined. The suit,
therefore, fails and is dismissed with costs and certified for two counsel.

CASE ANALYSIS-02

RAM PRASAD AND Ors v. JAGDISH PRASAD AND Ors

Citation:  (1956) 26 AWR 747

Significance of the case:

The case explains about the concept of the non-joinder of the parties to the suit. Order-1,
Rule-9 of the Code and no doubt says that no suit shall be defeated by reason of the
misjoinder or non-joinder 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. The rule
should be read along with Rule 10 which gives wide powers to the court to remedy
misjoinder or non-joinder of parties by striking out unnecessary parties or adding necessary
parties.

Facts:
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The facts are these. The Plaintiffs-Appellants instituted a suit in a representative capacity on
behalf of the Hindu public of mohalla Shahpara claiming: (a) a declaration that Jagdish
Prasad the Defendant first-party had no concern with the ownership of the temple and the
houses attached to it as detailed at the foot of the plaint; and (b) a permanent injunction
restraining him from taking possession over the suit property and restraining him further from
interfering with the right of the Hindu public of that locality in the darshan and worship of the
deity.

Issues:

1. Whether the order for remanding the case for adding necessary party is illegal or with
material irregularity?

Plea of Respondents:

The suit was resisted by Defendant No. 1 alone. He denied the existence of any temple. He
also denied that the Hindus had any right of worship in this property. He contended that the
houses in suit were not attached to any temple. He pleaded Section 11, Code of Civil
Procedure as a bar to the suit. The necessity for the suit, according to the Plaintiffs, arose
because in an earlier suit between the Defendants first-party and the Defendants-second-party
a decree was passed by the lower court in favour of the Defendant first-party holding that the
property was his own and that, although a second appeal had been instituted against that
decision and was pending in the High Court on the date of the present suit, there were signs
of collusion between the Defendants and if the property is made over to the Defendants first-
party it would be detrimental to and against the interests of the Hindu public of that locality.

Arguments:

It is conceded that if the order of remand is an order Under Order XLI, Rule 23 of the Code it
would be appealable Under Section 104 read with Order XLIII, Rule l(u) of the Code. But if
the order is one Under Section 151, Code of Civil Procedure its net open to appeal.

The provision for appeal in Order XLIII, Rule l(u) was for an appeal against an order Under
Rule 23, of Order XLI remanding a case where an appeal would lie from the appeal of the
appellate court. This Court amended this rule in the year 1926 so as to make all orders of
remand appealable. But in the year 1935 it was discovered that such a rule was ultra vires
because it was repugnant to the provisions of Section 104 of the Code of Civil Procedure.
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This Court by rule could not provide for an appeal against any order which was not made less
than one of the rules in the First Schedule and, therefore, it could not provide for an appeal
against an order passed under the provisions of Section 151 of the Code. The result was that
the rule in Order XLIII, Rule l(u) was again amended by Notification No. 5529, dated 24-9-
1935, and the amended rule was made applicable to "an order Under Rule 23 of Order XLI
remanding a case where an appeal would lie from the decree of the appellate court".

Interpretation of the Court:

According to Keshardeo Chamria v. Radha Kissen Chamria 2, The allegation was that the
necessity for the present suit arose because there were signs of collusion between the two
Defendants and that if the property was made over to the Defendant-first-party, it would be
detrimental to, and against the interests of, the Hindu public. If under such circumstances the
court below came to the conclusion that in order to avoid multiplicity of suits and future
controversies about the matter the deity should be made a party, it cannot be said that the
court below acted in the exercise of its jurisdiction illegally or with material irregularity.
Order I, Rule 9 of the Code no doubt says that no suit shall be defeated by reason of the
misjoinder or non-joinder 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. The rule
should be read along with Rule 10 which gives wide powers to the court to remedy
misjoinder or non-joinder of parties by striking out unnecessary parties or adding necessary
parties. One of the controversies in the suit was whether there is a temple and an idol, and
whether the properties are attached to the temple.

Final Judgement:

Here the question of worship in a given property depends upon the determination of the
question as to whether there is an Idol and a temple in that property and whether the right of
worship vests in the Hindu public of that locality unhampered by any restrictions on the part
of the Defendant. Under such circumstances the idol was a necessary party. Consequently I
am of opinion that the impugned order is not open to appeal but is open to revision, but no
ground has been made out why the order should be interfered with in revision and it has not
been shown that the lower appellate court acted in the exercise of its jurisdiction illegally or

2
1953 ALJ 101
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with material irregularity. The appeal which is treated as a revision is therefore dismissed
with costs. The record will be sent down to the trial court through the lower appellate court
for proceeding with the matter in accordance with law.

CASE ANALYSIS-03

ANESHWAR PRASAD AND Ors v. MISRI LALL AND Ors

Citation: AIR1961Pat28

Significance of the case:

The present case mainly explains about the concept of non-joinder of proper party in money-
suits. Here the defendants are entitled to raise the objection of suit being bad on account of
joining them as parties to suit. The respondents had no right to raise the objection of non-
joinder of parties on their account as they did not take it earlier in suit.

Facts:

Mungeshwar Lal 3 and Darbari Lall were admittedly uterine brothers. On 26-1-1944,
Mungeshwar executed a rehan in favour of defendants 1 to 3, in respect of the properties,
mentioned in schedules 2 and 3 of the plaint. On 20-3-1944, Mungeshwar again executed
another rehan in respect of schedule 3 property only, in favour of the same mortgagees, that
is, defendants 1 to 3. On 16-5-1949, Musammat Deo Kuer, widow, of Mungeshwar, who was
by that time dead, executed an ijara in favour of the plaintiffs regarding schedule 4 properties
which consisted of schedules II and III properties. On 29-8-1949, Deo Kuer, along with her
daughter, defendant 4, and, her Nati, defendant 5, sold schedule 5 properties to 'the plaintiffs.
The plaintiffs, therefore, brought the suit for redemption of the two rehans of 1944 in favour
of defendants 1 to 3.

Issues:

1. Whether the suit is bad for non-joinder of party?

Plea of respondents:

A joint written statement was filed on behalf of defendants 7(a), 7(b), 7(c) and 9, and, they
admitted in paragraph 21 of their written statement, that Darbari Lall redeemed the ijaras of
defendants 1 to 3 in 1949, and, that they have been coming in possession of the lands in suit
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to the knowledge of all including the plaintiffs. They, however, did not plead in the written
statement that the suit was bad for misjoinder of parties, also because they were unnecessary
parties to the suit, as they had a paramount title, and, therefore, they should not have been
made parties to it. In paragraph 6 of the written statement, no doubt, they pleaded that the suit
was bad for misjoinder of parties, but, they alleged that it was so because Dwarka Prasad or
his sons and widow, who had never any concern with the suit lands, had also been made
parties to the suit.

Arguments:

Mr. R. P. Katriar, who appeared for the plaintiffs-appellants, argued that the view taken by
the court of appeal below is erroneous, because defendants 7 series and 9 series, were
necessary parties to the suit, as rightly held by the first court, and, therefore, the plaintiffs'
suit should not have been dismissed as against them. In support of his contention, he relied
upon a Bench decision of this court in Khub Lal Upadhya v. Jhapsi Kundu3 which was
subsequently followed by a Division Bench of the Allahabad High Court in Jaddu Koeri v.
Deep Chand Koeri.

It was attempted to be argued by Mr. Kumar Bahadur, who appeared for defendants 7(a) to
7(c) and 9 to 9(b) -- respondents, that merely because these defendants were in possession of
the mortgaged properties, they cannot be said to have such interest in the mortgage security,
or, in the right of redemption as would make their joinder as co-defendants to the suit for
redemption absolutely necessary under Order 34, Rule 1, C. P. C. it was contended, on behalf
of the appellants, by Mr. Katriar, in reply, that it was not open to those defendants, now
respondents, to raise the objection of the suit being bad for misjoinder of parties on account
of their joinder as defendants, when they did not plead so in their written statement, or, at or
before the settlement of the issues in the trial court, or, as a matter of fact, at any stage of the
suit in the first court. He, in support of his contention, relied on Order 1, Rule 13 of the CPC.

Interpretation of the Court:

The above Rule 13 refers to two kinds of objections, the one for non-joinder of parties, and,
the other for misjoinder of parties. These objections must be taken at the earliest possible

3
AIR 1924 Pat 613
 17

opportunity and, in all cases where issues are settled, at or before such settlement, otherwise
the objection shall be deemed to have been waived. This is the true scope of Rule 13 of Order

It should be borne in mind, however, that a misjoinder or non-joinder of parties is not fatal to
the suit, as would be clear from Rule 9 of Order 1 of the Code. In the present case, as stated
earlier, no doubt, an objection on the ground of misjoinder of parties was taken in the written
statement by these defendants, but that misjoinder they pleaded was on account of impleading
Dwarka Prasad, defendant 6, and his son and widow, on which objection an issue, Issue No.
4, "Is the suit bad for misjoinder of party?" was raised. This issue No. 4, therefore, obviously
must relate only to the objection on the ground of misjoinder of parties on account of
impleading defendant 6 and his heirs as parties to the suit.

Final Judgement:

The findings of the trial court against these defendants respondents were not challenged by
them in appeal, but they wanted to get rid of them by raising the question that they were
unnecessary parties to the suit, which objection, however, came too late, because they did not
take it in the Court of first instance at any stage of the suit.

Therefore, hold that defendants 7(a) to 7(c) and 9 to 9(b), or, the heirs of the deceased
defendant 9(b), the appellants in the court of appeal below, now respondents 1 to 14 had no
right to raise the objection of non-joinder of parties on their account, as they did not take it
earlier in the suit, and, therefore, they must, he deemed to have waived it, and, as such the
court of appeal below had no jurisdiction to entertain that objection on appeal for the first
time.

In the result, the appeal succeeds, the judgment and decree of the court of appeal below are
set aside, and, those of the trial court are restored, and the plaintiffs' suit is decreed also as
against defendants 7(a), 7(b), 7(c) and 9, 9(a) and the heirs of 9(b), who, are now respondents
1 to 14. The appellants will be entitled to their costs of this Court and of the Court of appeal
below from the just mentioned defendant’s respondent’s t to 14 only. In all other respects the
judgment and decree of the trial court, which were not challenged in the court of appeal
below, are affirmed.

CASE ANALYSIS-04

RADHEYLAL SOMSINGH v. RATANSINGH KISHANSINGH

 18

Citation: 1977MPLJ335

Significance of the case:

This case explains about the concept of the non-joinder of the necessary party in money suits.
This case explains about consideration of the Municipality as one of the necessary party.
Municipality might at most, in view of case set up by Defendant, be an important witness in
support of his defence, but not a necessary party - Question of necessary party had
necessarily to be decided with reference to averments made in plaint and question in
controversy

Facts:

The suit premises, which are admittedly owned by the Municipality Guna, were on 21-11-60
taken on rent by the plaintiff; they were let out by the plaintiff to defendant as also some
utensils and other articles of the hotel were given on hire at the time of letting out and the
composite amount agreed to be paid by the defendant to the plaintiff was Rs. 90 p.m. in
respect of the rent as well as the hire charges of the utensils.

The plaintiff by the notice dated 30-1-63 determined the tenancy of the defendant and made a
demand for the arrears of rent /hire charges. The defendant having failed to vacate the suit
premises and to pay the arrears, the plaintiff filed the suit. The defendant while admitting that
the suit premises were initially let out to him by the plaintiff inter alia contended that
according to the rules of the Municipality, the plaintiff was not competent to sub-let the suit
premises; that the plaintiff had defaulted in payment of arrears of rent due to the
Municipality; that a dispute was going on between the plaintiff and the Municipality and that
the defendant had applied to the Municipality for grant of lease to him of the suit premises on
his paying full arrears of rent and the Municipality had agreed to do so and as such the
defendant had become tenant of the Municipality since about the year 1962.

Issues:

1. Whether the Municipality was necessary party to the suit or not?

Plea of Respondents:
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The defendant also pleaded payment of arrears of rent/hire charges and thus controverted the
right of the plaintiff to eject him and claim the suit amount from him. He also contended that
the suit of the plaintiff suffered from the defect of non-joinder of necessary party as
according to him the Municipality Guna was a necessary party.

Arguments:

Learned counsel for the appellant raised two contentions before this Court, viz. (1) that the
Accommodation Control Act (hereinafter referred to as the 'Act') applies to the present suit
and the question of ejectment should have been examined in the light of the provisions of that
Act as to whether a ground for ejectment under that Act was made out by the plaintiff or not;
and (2) that the Municipality was a necessary party, which having not been joined, the suit
should have been dismissed for nonjoinder of necessary parties. Learned counsel also
disputed the amount decreed by way of arrears of mesne profits against the defendant.

Learned counsel argued that the provision relating to exemption in an Act has to be strictly
construed and, therefore, section 3 has to be construed to mean that the exemption would
apply only if the contract was of tenancy regarding the suit premises, and not otherwise.

The learned counsel for the appellant relying on the decision of this Court in Raghvendra
Singh and others v. Marnu Basant and another 4 and contended that in view of the decision
in this case, the defendant is not estopped from raising the plea that he has become the tenant
of the Municipality and therefore that plea has to be examined and for that purpose
Municipality is a necessary party.

Interpretation of the Court:

According to Dhansingh and Ors. vs. Smt. Sushilabai Laxminarayan Gujar and Ors.
(13.03.1968 – MPHC)5 they explained for considering the concept of non-joinders. In the
instant case as already observed, the defendant's plea is not that the Municipality has
determined the tenancy of the plaintiff and, therefore, the plaintiff had lost the tenancy right
he had in the suit premises and which he had sub-let to him. Thus, the aforesaid decision
cannot be pressed into service. It is in the background of the aforesaid legal position that the
question of defect of non-joinder of Municipality has to be determiner4. The suit between the
parties is based on the contract of tenancy and the plaintiff-landlord is seeking possession on

4
1971 M P L J 4
5
AIR 1968 MP 229
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determination of the lease of the suit premises. Merely because the defendant has set up a
plea of Jus tertii in his defence, the Municipality would not become a necessary party. The
plaintiff claims no relief against the Municipality, nor is it a case where in absence of the
Municipality, the controversy between the parties cannot be decided.

Final Judgement:

In the result, the appeal is partly allowed. The decree with regard to arrears of rent and mesne
profits is modified and the amount is reduced from Rs. 1,578 to Rs. 1,200 as agreed to by the
learned counsel for the parties. The rest of the decree of the Courts below is confirmed. I
make no order as to costs in the circumstances of the case.

CASE ANALYSIS-05

EDA MARY v. YEDLA ELZEBETH RANI AND Ors

Citation:  2019(1)ALT273

Significance of the case:

Suit was bad for non-joinder of necessary party as a widow who has a share was not added as
a party, once guardian steps in sale it did not become void. The Guardian of properties signed
sale deed and therefore sale was not void as far as minor was concerned - Respondent should
have filed a suit for cancellation of sale deed as said sale deed was not void but was only
voidable.

Facts:

The claim of the plaintiffs before the lower Court is about the property belonging to one
Elisha Rao which was sold to defendant No. 1. The plaintiffs' claim is that this sale effected
by defendant No. 2 for himself, 2nd plaintiff, defendant Nos. 3 and 4 is not binding on them.
Therefore, they have filed a suit claiming the relief of a partition/division of the property into
five equal shares and for allotment of two shares to the plaintiffs, directing the defendants to
render a true and correct account of the income; to grant future profits etc.

The plaintiffs' case is that while they were both living in Kuwait the suit schedule land is
leased out to the husband of defendant No. 1. As the husband of defendant No. 1 was not
rendering the correct accounts, a legal notice dated 5.5.1988 was issued, to which a reply
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notice was given on 16.6.1988. Then the plaintiffs realized that there was a sale of the
property. Hence, the suit is filed for the reliefs

Plea of Respondents:

Defendant No. 1 filed a written statement denying the entire claim. They contended that the
sale was valid, that it was in the knowledge of the plaintiffs, that they were in open
possession, that the widow of a dead brother has a share in the property, that the suit is a
collusive suit filed in view of the rise in the market value of the property etc. Defendant Nos.
3 and 4 took a plea that they were not aware of the sale deed that was executed or of the
contents of the documents. According to them, defendant No. 4 was also a minor and was
born on 29.8.1959. Therefore, the sale deed is not binding on defendant No. 4 also.

Arguments:

The learned Counsel for the appellants pointed out that the lower Court committed a series of
glaring errors in passing the impugned judgment. He particularly drew the attention of this
Court to the grounds urged in the ground of appeal namely Ground Nos. 3, 8, 9, 10 and 11.
Admittedly as can be seen from the facts, the widow of a brother David Raju is alive but she
is not added as a party to the suit. According to the impugned judgment, she has lost her right
in the property because she has married somebody else. In addition to this issue about the
non-joinder of the party, the other issue that arose is about the existence of another property,
which is not included in the plaint schedule. In the oral evidence it transpired that there is
another one acre property in village belonging to the family, which is not added as an item for
partition. Therefore, the learned Counsel for the appellants argued that the suit for a partial
partition cannot be sustained. The respondents argued that the lower Court rightly
apportioned the properties.

Learned Counsel for the appellants argues that a suit for a partial partition does not lie. All
the properties which are capable of being partitioned must be included in the suit. Learned
Counsel points out that this admission is in the evidence of the contesting defendant who is a
family member. He argues that the entire suit is a collusive suit and that the fact that the wife
of a brother is not included and an equally valuable item of the property is not included,
clearly shows the collusive nature of the suit. He states that the evidence available is enough
for this Court to pronounce finally on the matter under Order 41 Rule 33 of C.P.C. He prays
that the suit must be dismissed in to as it is a collusive suit.
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Interpretation of the Court:

Issue No. 4 is, whether the A and B schedule properties are liable to be partitioned. In view of
the fact that the suit is filed for partial partition and a necessary party is not been added, this
Court is of the opinion that A and B schedule properties cannot be partitioned. Each party is
not entitled to 1/5th share as recorded by the Court Below.

The relief of recovery of possession is a necessary prayer because admittedly, defendant No.
1 is in actual physical possession of the property pursuant to Ex. A4-sale deed. The said sale
deed was executed 12 years before the filing of the suit. In the period between 1976 to 1988
defendant No. 1 got her name mutated in the municipal records and was openly enjoying the
property. The case of the plaintiffs is that initially they were under the impression that the
defendant No. 1's husband was enjoying a lease of the property and the possession was given
to them as a lessee. Later, they claim that after exchange of lawyer notices they realized about
the execution of the sale deed. The fact, however, remains that they admit the possession of
defendant No. 1. Thus by virtue of the sale deed and the clear possession, this Court is of the
opinion that there is a serious cloud on the title of the plaintiffs.

Final Judgement:

No documentary evidence is available to attribute any knowledge. No oral evidence is also

there on the record to attribute any knowledge. Hence, this Court is of the opinion that the
issue of the limitation cannot be really raised in this case. In view of all of the above, this
Court is of the opinion that the suit filed suffers from serious defects which were overlooked
by the lower Court. The impugned judgment and decree are set aside. The appeal is allowed.
In circumstances of the case no costs. Miscellaneous petitions, if any, pending in this appeal
shall stand closed.

CONCLUSION
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As explained above, non-joinder or mis-joinder of parties is not fatal to the suit. Order 1,
Rule 9 of the Code of Civil Procedure lays down that no suit shall defeated by reason of the
misjoinder or non-joinder of parties, and the court may in every suit deal with the matters of
controversy so far as the regards the rights and interests of the parties actually before it. The
only exception provided to this rule is furnished by the general rule that a court will refrain
from passing a decree which would be ineffective and infructuous. To sum up, in the case of
non-joinder of necessary parties the Court cannot pass an effective decree in their absence. In
such a case, the suit cannot proceed and is liable to be dismissed if the plaintiff on being
provided with an opportunity to amend the plaintiff refuses to do so. The two principals have
been incorporated under the Code of Civil Procedure rightly in order to provide justice and
protect the rights of the individuals.

BIBLIOGRAPHY

ARTICLES:

1. Joinder/ Misjoinder/ Non-Joinder of parties in Civil suits, Nisha Nandini, Lawyered,

August 11th, 2020.
ONLINE SOURCES:

1. https://www.manupatra.in
2. https://www.westlaw.in
3. http://www.heinonline.in
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