What is the difference between a necessary party and a proper party?

  A necessary party is one without whom no effective decree can be passed, while a proper party is one in whose absence an effective decree can still be passed, but whose presence helps the court completely and effectively decide the dispute.

30-second answer

A necessary party is a person without whom no effective order or decree can be passed by the court. If a necessary party is not joined, the suit may fail for non-joinder. A proper party, on the other hand, is not essential for passing an effective decree, but his presence enables the court to completely and finally adjudicate all issues involved. Therefore, absence of a proper party does not make the suit incompetent, though his joinder may avoid multiplicity of proceedings. ”

Easy memory line

“Necessary party: no effective decree without him; proper party: effective decree possible without him, but complete adjudication is better with him.

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Not a Necessary Party but a Proper Party: Recent Supreme Court Clarification on Subsequent Purchasers in Specific Performance Suits

 In the realm of property disputes, specific performance suits are common remedies for buyers seeking enforcement when a seller breaches a sale agreement. A frequently contested scenario arises when the original vendor sells the disputed property to a third party before the suit concludes. This raises a crucial legal question: Is the subsequent purchaser a necessary party to the suit? Recent Supreme Court rulings have provided significant clarity on this issue, reshaping the litigation landscape for such cases.

Subsequent Purchaser: Necessary or Proper Party?

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Can the court permit the plaintiff to add any party to suit even if that party is neither necessary nor proper?

 9.0. From the impugned order passed by the High Court, it appears that what has weighed with the High Court is that plaintiffs, is the dominus litus and heavy reliance is placed in the case of Kasturi (supra). However, the principle that the plaintiffs is the dominus litus shall be applicable only in a case where parties sought to be added as defendants are necessary and / or proper parties. Plaintiffs cannot be permitted to join any party as a defendant who may not be necessary and / or proper parties at all on the ground that the plaintiffs is the dominus litus.

IN THE SUPREME COURT OF INDIA

 CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 3703-3750 OF 2022;

ASIAN HOTELS (NORTH) LTD. Vs ALOK KUMAR LODHA & ORS.

Coram:  M.R. SHAH; J., B.V. NAGARATHNA, J. 

Author: M.R. SHAH, J.

Dated:  JULY 12, 2022 

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Is the landlord a proper party in a suit for perpetual injunction for restraining Municipal corporation from demolishing rented premises?

The question is: whether the landlord is a necessary or proper party to the suit for perpetual injunction against the Municipal Corporation for demolition of demised building? The landlord has a direct and substantial interest in the demised building before the demolition of which notice under Section 351 was issued. In the event of its demolition, his rights would materially be affected. His right, title and interest in the property demised to the tenant or licences would be in jeopardy. It may be that the construction which is sought to be demolished by the Municipal Corporation was made with or without the consent of the landlord or the lessor. But the demolition would undoubtedly materially affect the right, title and interest in the property of the landlord. Under those circumstances, the landlord necessarily is a proper party, though the relief is sought for against the Municipal Corporation for perpetual injunction restraining the Municipal Corporation from demolition of the building.

 Supreme Court of India

M/S. Aliji Momonji & Co vs Lalji Mavji & Ors on 12 July, 1996

Citations: JT 1996 (7) 53, 1996 SCALE (5)485

Author: K Ramaswamy

Bench: Ramaswamy, K.

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Whether the husband is a necessary party to suit filed by father-in-law against daughter-in-law for her eviction from his house?

 Question No.7

118. Learned counsel for the appellant challenging the

direction issued by the High Court that the husband of

respondent be impleaded by the Trial Court by invoking

suo moto powers under Order I Rule 10 CPC, submits that

no relief having been claimed against the son of the

appellant, he (son) was neither necessary nor proper

party. Learned counsel for the appellant has relied on

the judgments of this Court in Razia Begum Vs.

Sahebzadi Anwar Begum and others, AIR 1958 SC 886 and

Ramesh Hirachand Kundanmal Vs. Municipal Corporation of

Greater Bombay and others, (1992) 2 SCC 524. Latter

judgment of this Court discussing judgment of Razia

Begum has laid down following in paragraphs 10 and 12:

“10. The power of the Court to add parties

under Order I Rule 10, CPC, came up for

consideration before this Court in Razia Begum

(supra). In that case it was pointed out that

the Courts in India have not treated the matter

of addition of parties as raising any question

of the initial jurisdiction of the Court and

that it is firmly established as a result of

judicial decisions that in order that a person

may be added as a party to a suit, he should

have a direct interest in the subject-matter of

the litigation whether it be the questions

relating to moveable or Immovable property.

12. Sinha, J. speaking for the majority

said that a declaratory judgment in respect of

a disputed status will be binding not only upon

parties actually before the Court but also upon

persons claiming through them respectively. The

Court laid down the law that in a suit relating

to property in order that a person may be added

as a party, he should have a direct interest as

distinguished from a commercial interest in the

subject-matter of the litigation. Where the

subject-matter of a litigation is a declaration

as regards status or a legal character, the

rule of presence of direct interest may be

relaxed in a suitable case where the Court is

of the opinion that by adding that party it

would be in a better position effectually and

completely to adjudicate upon the controversy.

…………”

119. There can be no dispute with the preposition of

law as laid down by this Court in the above two cases.

In the present case, although plaintiff has not claimed

any relief against his son, Raveen Ahuja, the husband

of the respondent, hence, he was not a necessary party

but in view of the fact that respondent has pleaded her

right of residence in shared household relying on

Sections 17 and 19 of the Act, 2005 and one of the

rights which can be granted under Section 19 is right

of alternate accommodation, the husband is a proper

party. The right of maintenance as per the provisions

of Hindu Adoption and Maintenance Act, 1956 is that of

the husband, hence he may be a proper party in cases

when the Court is to consider the claim of respondent

under Sections 17 and 19 read with Section 26 of the

Act, 2005.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2483 of 2020

SATISH CHANDER AHUJA Vs  SNEHA AHUJA 

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Basic principles for adding any person as party to proceeding

 It is an elementary principle of law that a legal proceeding is initiated for redressal of a grievance; it seeks an appropriate relief in response to such grievance. All those parties in whose absence such grievance cannot be considered or such relief cannot be granted are termed as "necessary parties", whilst all those other parties whose presence may be considered proper for an effective adjudication of the grievance are "proper parties" to such proceeding. Unless a party qualifies either as a necessary or a proper party, it cannot be joined.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 312 of 2018

Decided On: 20.04.2018

 Janak Dilip Dwarkadas  Vs. The Joint Charity Commissioner Greater Mumbai Region,

Hon'ble Judges/Coram:

S.C. Gupte, J.

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Whether co-owner of property is necessary or proper party in eviction suit against tenant?

First, in an eviction suit filed by the Plaintiff (Landlord) against the Defendant (Tenant) under the State Rent Act, the landlord and tenant are the only necessary parties.

13. In other words, in a tenancy suit, only two persons are necessary parties for the decision of the suit, namely, the landlord and the tenant.

14. Second, the landlord (Plaintiff) in such suit is required to plead and prove only two things to enable him to claim a decree for eviction against his tenant from the tenanted suit premises. First, there exists a relationship of the landlord and tenant between the Plaintiff and the Defendant and second, the ground(s) on which the Plaintiff-landlord has sought Defendant's-tenant's eviction under the Rent Act exists. When these two things are proved, eviction suit succeeds.

15. Third, the question of title to the suit premises is not germane for the decision of the eviction suit. The reason being, if the landlord fails to prove his title to the suit premises but proves the existence of relationship of the landlord and tenant in relation to the suit premises and further proves existence of any ground on which the eviction is sought under the Tenancy Act, the eviction suit succeeds.

16. Conversely, if the landlord proves his title to the suit premises but fails to prove the existence of relationship of the landlord and tenant in relation to the suit premises, the eviction suit fails. (See-Dr. Ranbir Singh v. Asharfi Lal, MANU/SC/0829/1995 : 1995(6) SCC 580).

17. Fourth, the Plaintiff being a dominus litis cannot be compelled to make any third person a party to the suit, be that a Plaintiff or the Defendant, against his wish unless such person is able to prove that he is a necessary party to the suit and without his presence, the suit cannot proceed and nor can be decided effectively.

18. In other words, no person can compel the Plaintiff to allow such person to become the co-Plaintiff or Defendant in the suit. It is more so when such person is unable to show as to how he is a necessary or proper party to the suit and how without his presence, the suit can neither proceed and nor it can be decided or how his presence is necessary for the effective decision of the suit. (See-Ruma Chakraborty v. Sudha Rani Banerjee and Anr., MANU/SC/0919/2005 : 2005(8) SCC 140)

19. Fifth, 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 the proceeding. (See-Udit Narain Singh Malpaharia v. Additional Member Board of Revenue, Bihar and Anr. MANU/SC/0045/1962 : AIR 1963 786)

20. Sixth, if there are co-owners or co-landlords of the suit premises then any co-owner or co-landlord can file a suit for eviction against the tenant. In other words, it is not necessary that all the owners/landlords should join in filing the eviction suit against the tenant. (See-Kasthuri Radhakrishnan and Ors. v. M. Chinniyan and Anr., MANU/SC/0075/2016 : 2016(3) SCC 296)

21. Keeping in mind the aforementioned well settled principles of law and on examining the legality of the impugned order, we find that the impugned order is not legally sustainable and hence deserves to be set aside.

22. In our considered opinion, Respondent No. 1, who claims to be the co-sharer or/and co-owner with the Plaintiffs (Appellants herein) of the suit property is neither a necessary and nor a proper party in the eviction suit of the Appellants against Respondent Nos. 2 to 5. In other words, such eviction suit can be decreed or dismissed on merits even without the impleadment of Respondent No. 1.

23. In the eviction suit, the question of title or the extent of the shares held by the Appellants and Respondent No. 1 against each other in the suit premises cannot be decided and nor can be made the subject matter for its determination.

24. The reason being that this is not a suit between the Appellants (Plaintiffs) and Respondent No. 1 where their inter se rights relating to the suit premises can be gone into but rather is an ejectment suit filed by the Appellants against Respondent Nos. 2 to 5 for their eviction from the suit premises.

25. Therefore, the Lis in the suit is between the Appellants on the one hand and Respondent Nos. 2 to 5 on the other hand and the decision in the suit would depend upon the question as to whether there exists any relationship of landlord and tenant between the Appellants and Respondent Nos. 2 to 5 in relation to the suit premises and, if so, whether the grounds pleaded in the plaint for claiming eviction of Respondent Nos. 2 to 5 are established or not. For deciding these two main questions, the presence of Respondent No. 1 is not necessary.

26. For these reasons, we are of the considered opinion that Respondent No. 1 is neither a necessary and nor a proper party in the suit.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 3018 of 2008

Decided On: 25.01.2018

 Kanaklata Das  Vs. Naba Kumar Das and Ors.

Hon'ble Judges/Coram:

R.K. Agrawal and Abhay Manohar Sapre, JJ.

Citation:(2018) 2 SCC 352

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Whether partners of partnership firm are proper party to eviction suit?

 Having extensively heard Shri C.U. Singh, learned senior Counsel appearing for the Appellant and Mr. Sanjeev Mahajan, learned Counsel appearing for the Respondents, we are of the view that for properly adjudicating the issue before the Rent Controller in Eviction Petition No. 18/2010, in view of the contentions taken by the parties, both the firm in the name and style of K.K. Lee and all its partners should be on the array of parties as proper party. No doubt, they are not necessary parties form the point of view of the Eviction Petitioners, but the Court has a duty to see whether the presence of the proper parties would facilitate the complete determination of the matter in dispute. 

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1345 of 2017 (Arising from Special Leave Petition (C) No. 823/2015)

Decided On: 02.02.2017

Richard Lee Vs. Girish Soni and Ors.

Hon'ble Judges/Coram:

Kurian Joseph and A.M. Khanwilkar, JJ.

Citation:2017(4) MHLJ 48

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Whether beneficiary of trust can be impleaded as party in suit for specific performance against trust?

After due consideration of the rival submissions, we are of the view that the High Court erred in interfering with the order of the trial Court impleading the appellant as a party defendant. Admittedly, the appellant is a beneficiary of the Trust and under the provisions of the Trusts Act, the Trustee has to act reasonably in exercise of his right of alienation under the terms of the trust deed. Appellant cannot thus be treated as a stranger. No doubt, it may be permissible for the appellant to file a separate suit, as suggested by Respondent No.1, but the beneficiary could certainly be held to be a proper party. There is no valid reason to decline his prayer to be impleaded as a party to avoid multiplicity of proceedings. Order I Rule 10(2), CPC enables, the Court to add a necessary or proper party so as to "effectually and completely adjudicate upon and settle all the questions involved in the suit".

Supreme Court of India

Baluram vs P.Chellathangam & Ors on 10 December, 2014

Bench: T.S. Thakur, Adarsh Kumar Goel

Citation;AIR 2015 SC 1264

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Who is proper party in suit?

In the second place, the expression ' proper party' means the party who may be interested in the result of the suit and who may have a right to seek the assistance of the Court in coming to a decision on the point in issue. 

Calcutta High Court

Baikuntha Kumar Shil vs Sarat Chandra Nath And Ors. on 23 February, 1925

Equivalent citations: AIR 1925 Cal 1257

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Whether landlord will be a proper party in a suit filed by tenant restraining Municipal Corporation from demolishing a part of tenanted construction?

 Considering the length and breadth of the plaint allegations, one of the issues before the trial Court would be as to whether the alleged construction sought to be demolished is a sanctioned construction or not. The landlords or the owners of the premises would be the better persons to throw adequate light on the controversy. In these circumstances, in my view, the landlords are the proper parties, though the relief is sought only against the Corporation for perpetual injunction restraining the Corporation from demolishing the structure. In Ramesh H. Kundanmal v. Municipal Corporation of Greater Bombay (supra) the Apex Court had pointed out in paragraph 18 of the judgment that the notice did not relate to the structure but to two chattels/structures which were movable on wheels and plates where servicing and/or repairs were done and used for storing implements of the mechanics. Admittedly, respondent No. 2 therein had no interest in those chattels and demolition of the same in pursuance of the notice was not a matter which was to affect the legal rights of the landlord in that case. In the instant case, the landlords would be entitled to place all the facts before the trial Court and, therefore, in my view, the presence of the landlords before the trial Court would be necessary for adjudicating upon the issues effectually and completely.1

Bombay High Court

Adam A. Sorathia And Anr. vs Municipal Corporation Of Greater ... on 11 April, 2001

Equivalent citations: 2002 (4) BomCR 419

Coram: V.C. Daga, J.

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What will be effect of Non Joinder of parties?

Under 0. 1 r. 9 of the Code of Civil Procedure no suit shall be defeated by reason of the misjoinder or non-joinder of parties; but there can be no doubt that if the parties who are not joined are not only proper but also necessary parties to it, the infirmity in the suit is bound to be fatal. Even in such cases, the Court can under 0. 1 r. 10, sub-rule 2 direct the necessary parties to be joined, but all this can and should be done at the stage of trial and that too without prejudice to the said parties' plea of limitation.

Supreme Court of India

Kanakarathanammal vs V. S. Loganatha Mudaliar And ... on 18 December, 1963

Equivalent citations: 1965 AIR 271, 1964 SCR (6) 1

Bench: Gajendragadkar, P.B.

CITATION:
1965 AIR 271 1964 SCR (6) 1
ACT:
Hindu Law Women's Rights Act (Mys. 10 of 1933), s. 10(2)(b) -Scope of Practice-Necessary parties-Who are.
HEADNOTE:
The appellant in a suit against respondents claimed recovery of possession of the properties in Schedules 1, 2 and 3 as the sole heir of her mother. She claimed these properties exclusively, under s. 12(1) (i) of the Mysore Hindu Law Women's Rights Act, 1933. On challenge to her title by respondents she relied on a sale-deed created in favour of her mother for a consideration of Rs. 28,000. Respondents ,set up title in respect of the suit properties in the appellant's father alleging that her father had executed a will under which respondent I had been appointed an executor and as such, he got possession of the properties and handed them over to Respondent 2, as directed under the will. Alternatively, they urged that even if the property belonged -to the appellant's mother, she would not be entitled to claim exclusive title to it, because by succession it would devolve upon the appellant and her brothers; and her failure. to join her brothers made the suit incompetent for non-joinder of necessary parties. The trial court dismissed the suit. On appeal, the High Court confirmed the decree of -the trial court, but held that the main property in Schedule 1 did not belong to the appellant's mother, but to her father and the sale-deed in respect of the property was taken by her father in the name of her mother benami. On appeal by special leave, the appellant mainly contended that the property in question would fall under s. 10(2)(b) :of the Act, and not under s. 10(2)(d) as respondents had contended and therefore, she would be exclusively entitled to it and the plea of ,non-joinder of her brothers would fail.

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