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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Who are necessary parties for suit relating to mortgages?

 Order XXXIV, Rule 1 of the Code of Civil Procedure, 1908 deals with the parties that must be joined in suits relating to mortgages of immovable property.

Main Provision

"Subject to the provisions of this Code, all persons having an interest either in the mortgage-security or in the right of redemption shall be joined as parties to any suit relating to the mortgage."

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What is the standard of proof for deciding motor accident claim petition?

 The Hon'ble Apex Court in case of Anita Sharma Vs. New India Assurance Company, MANU/SC/0928/2020 : 2020:INSC:685 : (2021) 1 SCC 171, has held that nature of proceedings under Section 169 of Motor Vehicles Act are in the nature of summary proceedings and that strict principles of evidence and standard of proof like criminal trial are inapplicable. It is further held that the standard of proof on preponderance of probabilities would apply to such cases. The Hon'ble Apex Court expects form the Court to analyse the material placed on record to ascertain whether the claimant's version is more likely than not true. {Para 10}

11. No doubt, the initial burden is on claimants to prove the factum of occurrence of accident as well as negligence on the part of the driver of offending vehicle in order to make owner and insurer thereof liable for payment of compensation arising out of such accident. Here in this case, claimant No. 1 examined herself at Exhibit 23. She deposed about the accident and registration of First Information Report as well as filing of charge-sheet against the driver of Tavera jeep. Certified copies of First Information Report, Post Mortem notes (Exhibit 33), registration of vehicle bearing No. MH 26 V 4866 (Exhibit 36) and insurance policy (Exhibit 37) collectively are the part of record. In the cross-examination, no doubt, she admitted to have not witnessed occurrence of the accident however, there is nothing elicited in her cross-examination in order to create doubt about the document sought to be placed on record. Exhibition of these documents is not objected at stage of trial nor any doubt is created in respect of the same by effectively cross examining claimant No. 1. The owner has failed to cross-examine this witness. Whereas, on behalf of insurer, there is even no suggestion made to the witness that the driver of Tavera jeep was driving the vehicle by taking utmost care and the vehicle was not driven in excessive speed. Further, there is no suggestion to the effect that the accident has occurred due to mechanical fault or fault on the part of the other vehicle. Moreover, the genuineness thereof has not been challenged, except vague suggestion that by managing police, First Information Report is reported against driver of offending vehicle. The First Information Report is lodged by the police personnel at place far distant from the residence of the claimants. In such circumstances, there is no reason or justification to hold that it is registered at instance of claimants to seek compensation.

12. It is trite that claim petition is not to be tried as criminal proceeding wherein strict proof of the fact is required. In any enquiry for determination of compensation, claimants are expected to prove their case on preponderance of probabilities. First Information Report indicates that offence was registered against the driver of the offending jeep. There is nothing on record to indicate First Information Report being challenged by any one or quashment thereof is sought. In absence of any evidence to prove otherwise, the evidence on record is sufficient to hold that the accident has occurred due to negligence of the driver of offending jeep. The findings recorded by learned Tribunal with regard to the negligence therefore deserves no interference.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

First Appeal No. 4258 of 2017

Decided On: 09.01.2024

The Oriental Insurance Company Ltd. Vs. Pallavi and Ors.

Hon'ble Judges/Coram:

R.M. Joshi, J.

Citation:  MANU/MH/0129/2024,2024:BHC-AUG:315.

Read full Judgment here: Click here.

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Under which circumstances driver of offending vehicle is not necessary party to motor accident claim petition?

 The insurer challenges maintainability of claim for non-joinder of driver to the claim petition. Needless to say that strict procedure is not applicable in the enquiry which is summary in nature. Claimants are entitled to seek compensation from driver as well as owner at first instance being joint tortfeasors. If compensation is claimed from driver, he would be necessary party as in his absence no liability can be fixed upon him. However, vicarious liability of owner to compensate victim does not get discharged in absence of driver. It is open for the claimant to raise claim against both joint tortfeasors or either of them. In any event, owner has appeared in this proceeding and it was always open for him to lead evidence to show that driver of offending jeep was not negligent and consequently driver is not liable to pay compensation on the basis of vicarious liability for act of his employee. Owner has failed to prove the same. Having regard to the nature of claim, driver is not necessary party and no prejudice is shown to have caused to the merit of the case, on account of his absence. Hence, issue raised about maintainability of claim for non joinder of necessary party, sans merit. {Para 17}

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

First Appeal No. 4258 of 2017

Decided On: 09.01.2024

The Oriental Insurance Company Ltd. Vs. Pallavi and Ors.

Hon'ble Judges/Coram:

R.M. Joshi, J.

Citation:  MANU/MH/0129/2024,2024:BHC-AUG:315.

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Whether motor accident claim tribunal can dismiss claim petition on the ground that driver of offending vehicle is not added as party to the petition?

Learned Tribunal may be right in arriving at the finding that the driver of ill fated vehicle is a necessary party, however, was not justified in dismissing the claim mainly on the ground that he has not been impleaded in the proceeding. It seems that learned Member of the Tribunal was oblivious of the provisions of Order I Rule 10 (2) of the Civil Procedure Code, which reads as under :

Court may strike out or add parties The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit suit, be added. {Para 4}

5. This being the settled legal position, learned Member has committed serious error in dismissing the claim petition particularly when the claimants were unfortunate parents who lost their son aged about 22 years in motor vehicular accident. Utmost sensitivity to the cause of such nature is needed.

 IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

First Appeal No. 115/2012

Decided On: 14.02.2012

Sahebrao Tikaramji Gakhare and Ors. Vs. Lakhotia Transport Co. Pvt. Ltd. and Ors.

Hon'ble Judges/Coram:

M.N. Gilani, J.

Citation: MANU/MH/0175/2012,2013ACJ 109 Bom

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Under which circumstances driver of the vehicle is not necessary party to motor accident claim petition?

The issue to be examined herein is whether in the claims cases before the Motor Vehicles Accident Claims Tribunal, the driver of a vehicle who has been accused of negligence is a necessary party to the proceedings or whether the owner alone can be impleaded.

Here, one must bifurcate the terms 'party' and 'necessary party'. 'Party' has been correctly defined by the High Court in the impugned judgment in terms of involvement in the proceedings regardless of formal impleadment. However, a necessary party has been defined in the 5th edition of Black's Law Dictionary as follows:

In pleading and practice, those persons who must be joined in an action because, inter alia, complete relief cannot be given to those already parties without their joinder. Fed. R. civil P. 19 (a)....

First and foremost, as has been stated in the body of the judgment, natural justice would mandate involvement of a driver, as an adverse finding on negligence cannot and should not be made against him without giving him the opportunity to at least make a representation as a witness.

More importantly, however, one must look at the kind of evidence which must be led in such cases. Appellants have, as noticed hereinbefore, relied on Patel Roadways (supra) to try and prove that the driver need not be a party. Firstly, this case only relates to formally impleading the driver as a party. However, the fact that joint tortfeasors have been mentioned in the judgment is relevant.

Joint tortfeasors, as per the 10th edition of Charlesworth & Percy on Negligence, have been described as under:

Wrongdoers are deemed to be joint tortfeasors, within the meaning of the rule, where the cause of action against each of them in the same, namely that the same evidence would support an action against them, individually- Accordingly, they will be jointly liable for a tort which they both commit or for which they are responsible because the law imputes the commission of the same wrongful act to two or more persons at the same time. This occurs in cases of (a) agency; (b) vicarious liability; and (c) where a tort is committed in the course of a joint act, whilst pursuing a common purpose agreed between them.

Hence, employer and employee, the former being vicariously liable while the latter being primarily liable are joint tortfeasors and are therefore jointly and severally liable. However, by virtue of the fact that the cause of action is the same and that the same evidence would support an action against either, it follows that this evidence must necessarily include an examination of the driver who is primarily liable. To make a finding on negligence without involving the driver as at least a witness would vitiate the proceedings not only on the basis of the fact that the driver has not been given an opportunity to make a representation, but also because the evidence to make a finding regarding negligence would necessarily be inadequate.

24. On this basis, a driver should be made a 'party' to the proceedings. 

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 3041 of 2008 

Decided On: 29.04.2008

Machindranath Kernath Kasar Vs. D.S. Mylarappa and Ors.

Hon'ble Judges/Coram:

S.B. Sinha and V.S. Sirpurkar, JJ.

Author: S.B. Sinha, J.

Citation:  2008 INSC 556,MANU/SC/2484/2008,AIR 2008 SC 2545.

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Whether the party against whom no relief is claimed is necessary party to the application?

 Learned senior Counsel for the Respondent vehemently contended that inasmuch as in the application for rejection of plaint, the 1st Defendant has not impleaded the 2nd Defendant, the said application is liable to be dismissed on the ground of non-joinder of the 2nd Defendant, who is a necessary party.

In the case of non-joinder, if the objection is raised for the first time before this Court, the Court can always implead the party on the application wherever necessary. However, in the case on hand, for the disposal of application filed for rejection of the plaint under Order VII Rule 11, 2nd Defendant is not a necessary party, hence he need not be impleaded. Accordingly, we reject the said objection of the Respondent herein.

18. Apart from the above aspect, in the case on hand, the application for rejection of the plaint of the Appellant-1st Defendant seeks no relief against the Respondent herein-2nd Defendant. It is settled legal position that a party against whom no relief is claimed in the application is not a necessary party at all.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4841 of 2012.

Decided On: 03.07.2012

 The Church of Christ Charitable Trust and Educational Charitable Society  Vs. Ponniamman Educational Trust 

Hon'ble Judges/Coram:

P. Sathasivam and Jasti Chelameswar, JJ.

Author: P. Sathasivam, J.

Citation: MANU/SC/0515/2012,(2012) 8 SCC 706.

Read full Judgment here: Click here

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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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Whether purchaser of mortgaged property can claim the right of redemption even after passing the decree of foreclosure?

  The equity of redemption is a right which is subsidiary to the right of ownership. Such right is not over and above the right of ownership purchased by the plaintiff. The expression equity of redemption is a convenient maxim but an owner, who has stepped into the shoes of the mortgagor, after the purchase from the mortgagor but before filing a suit for foreclosure is entitled to redeem the property in terms of Section 60 of the Act. The second issue which needs to be addressed is,

(ii) Whether the decree obtained in a suit for foreclosure operates as res judicata and the right of redemption stands extinguished by the decree of the Court? {Para 19}

20. The High Court has held that the decree for foreclosure will operate as res judicata on account of the fact that the appellant filed an application for stay of the execution proceedings. The Executing Court has dismissed such an application. Such dismissal of the application in execution proceedings would operate as res judicata. It was also held that the appellant has lost right of redemption which is coextensive with the right of foreclosure.

21. An application for stay of execution does not have any trapping of a decree as is contained in Order XXI Rules 101 & 103 of the Code. The said provision reads as under:

“101. Question to be determined.-All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application, and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions.

xx xx xx

103. Orders to be treated as decrees. – Where any application has been adjudicated upon under rule 98 or rule 100, the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree.”

22. The only effect of filing of an application for stay of the execution would be that the appellant can be said to be aware of the fact that there is a decree for foreclosure passed against him which has not been stayed by virtue of the order of the Court. There is no determination of the claim as is contemplated in terms of Order XXI Rule 97 or Rule 99 of the Code having force of decree. The declining of stay of execution will not operate as res judicata only because Section 11 Explanation VII of the Code is applicable to the execution as well.

23. Therefore, the findings recorded by the High Court that the appellant is bound by the decree passed in the suit for foreclosure  is not tenable inter alia because the appellant was not impleaded as a party, though mandated under Section 91 of the Act and Order XXXIV Rule 1 of the Code. The mortgagee was aware of the transaction of purchase in view of the judgment of this Court in Dr. Govinddas as well as for the reason that the possession of the appellant was recorded in the revenue record. The subsequent conduct of mortgagee who has taken possession from the appellant also corroborates the fact that the mortgagee was aware of the factum of sale and possession of the appellant but still have chosen not to implead him as a necessary party. Still further, it is apparent from the pleadings itself that the original mortgagor had colluded with the mortgagee. Therefore, the right conferred by Section 60 of the Act does not stand extinguished by decree of the Court which is to be binding and had to be passed in the presence of the necessary parties and should not be collusive.

Reportable

Supreme Court of India

Narayan Deorao Javle (Deceased ) ... vs Krishna on 17 August, 2021

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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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Whether suit filed by the trust is maintainable if co-trustees are not joined as a party to suit?

The law is well settled that all co-trustees must be joined in filing suit unless the instrument of the Trust otherwise provides. No one single co-trustee even if he be as a managing trustee, unanimously chosen by the co-trustees, can maintain such a suit without other trustees being parties to it. If any one or more are unwilling to be joined the suit as plaintiff or for some reason or the other it is not possible to join them as plaintiff, they must be impleaded as defendants so that all the co-trustees could be before the Court.

The general principle of law is that the office of a trustee, irrespective of the number of trustees, is a joint one and co-trustees form, as it were, one trustee and must therefore execute the duties of their office jointly. Hence no suit in regard to trust properties would be maintainable by one or some of the trustees only, if the remaining trustees are not before the Court either as plaintiffs or even as defendants."

45. As held above, the trust properties vest on all trustees. Body of the Trust comprises of all the trustees of the Trust. It is, therefore, apparent that first of all, all the trustees have to decide whether or not suit is to be filed on behalf of the Trust. It has to be a joint or at least decision by majority. It cannot be disputed that the decision of the Trust must be reflected in the resolution passed in a meeting of the Managing Committee of the Trust. It is only through such resolution the Trust can speak or disclose its mind that it has decided to file suit and authorised one of its trustees to sign and verify the plaint to appoint or engage leader to represent the interest of the trust. In the instant case, it is nowhere mentioned in body of the plaint that the suit is being filed in pursuance of any such resolution passed by the Managing Committee of the appellant-Trust. Nowhere it is mentioned that Mr. V.K. Korani was authorised by all the trustees to represent interest of the Trust and that he is entitled to sign and verify the plaint on behalf of the trust. Thus, prima facie; suit has been filed without there being any authority in favour of Mr. Korani from the appellant-Pathshala Trust. The suit, thus, suffers from this additional substantial defect.

IN THE HIGH COURT OF BOMBAY

Appeal from Order No. 641 of 2004

Decided On: 13.08.2004

Decided On: 14.09.2004

Shri Cutchi Visa Oswal Derawasi Jain Pathshala Vs. Cutchi Visha Oswal Derawasi Jain Mahajan 

Hon'ble Judges/Coram:

V.C. Daga, J.

Citation: 2005(1) ALLMR484

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Whether bank and firm holding debts and securities are necessary party in application for grant of succession certificate?

 After hearing learned counsel for the parties and perusing the record of the case, this Court is of the opinion that granting of succession certificate is a summary proceeding, the person holding debts and securities is not required to be impleaded. This is an established fact that SBI and the Company are mere custodians of the property of the petitioner's parents, and therefore, a law declaration of succession shall not be connected to them at all. At most after a lawful declaration of succession, the Bank and Company will have a legal obligation to hand over the assets to the valid successor. This proposition is also fortified by the judgment rendered by the Hon'ble Delhi High Court in the matter of Sushila Devi v. State & Ors. in CM(M) No. 985/2017, decided on 12.09.2017.

IN THE HIGH COURT OF RAJASTHAN

S.B. Civil Writ Petition No. 4796 of 2019

Decided On: 16.04.2019

 Aruna Derashri  Vs. Learned District Judge, Bhilwara (Raj.)

Hon'ble Judges/Coram:

Dr. Pushpendra Singh Bhati, J.

Citation: AIR 2019 Raj 137

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Supreme Court: It is mandatory to hear second wife in appeal filed by first wife if husband has performed second marriage after divorce decree

 The Appellant herein is the second wife of Respondent No. 1 (husband). It is the case of the Appellant that after passing of the ex parte decree for dissolution of marriage of Respondent No. 1 with Respondent No. 2 and expiry of period of limitation for filing appeal, Respondent No. 1(husband) entered into matrimony with her (appellant). On the other hand, Respondent No. 2 (first wife of Respondent No. 1) filed the aforesaid appeal of which the Appellant had no knowledge, but the fact of Respondent No. 1 having married the Appellant was indeed stated before the High Court. However, when Respondent No. 1 stated that she was having no problem with the appellant, the High Court set aside the ex parte decree passed on 23.08.2003 in C.S. No. 09-A of 2002 and directed that, the parties shall live together as husband and wife. The Appellant herein (second wife of Respondent No. 1), on coming to know of the aforesaid order dated 09.08.2011 passed by the Single Judge of the High Court in M.A. No. 709/2005, filed review petition (R.P. No. 48 of 2014) before the High Court. The Division Bench of the High Court, by order dated 17.10.2014, dismissed the said review petition. Challenging both the orders, the Appellant has filed the present appeals by way of special leave in this Court.

10. The need to remand the case has occasioned because we find that the Appellant was not made a party to the appeal and nor she was heard by the High Court.

11. On perusal of the impugned order dated 09.08.2011, we find that the High Court, even after taking note of the factum of the marriage of the Appellant with Respondent No. 1, has not adverted to the consequences thereof and has given such directions, which may not be capable of due performance.

12. In such a situation, where the impugned order was passed without hearing the Appellant and not issuing any notice of the appeal to her and yet giving such directions, which may not be capable of being carried out, the impugned order, in our view, is wholly without jurisdiction and legally unsustainable and it has to be set aside on this short ground alone.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 4847-4848 of 2019 

Decided On: 09.05.2019

 Karuna Kansal Vs. Hemant Kansal and Ors.

Hon'ble Judges/Coram:

Abhay Manohar Sapre and Dinesh Maheshwari, JJ.

Citation: (2019) 6 SCC 581

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Whether award passed by motor accident tribunal will be vitiated if driver is not made party to proceeding?

Thus, the law is that the claimant while filing a claim application is under no obligation to ensure that all necessary and proper parties are impleaded as opponents to the claim petition. Considering the nature of the proceedings, the responsibility is of the Tribunal to ensure that the notices are issued to all the necessary parties. This power can be exercised by the Tribunal at any stage of the proceedings.

11. It is a matter of common knowledge that while defending a claim petition, diverse defences are raised in the written statements by the owners and especially the Insurers. However, in many cases, we find that all the defences pleaded are not pressed into service at the time of final hearing. Whenever a contention is pressed into service by any of the opponents to the claim petition or the persons to whom the notice of the claim petition is issued under Rule 260 that the driver of a vehicle is a necessary party, the Tribunal is under an obligation to examine the said contention and if found correct, issue a notice to the driver. It is obvious that if such contention is not pressed by the party to whom the notice is served, the said party cannot be allowed to raise the said contention for the first time in the appeal. A claimant cannot be allowed to suffer as he is under no obligation to implead any party as the opponent to the claim petition. In such a case, if the driver is aggrieved by the adverse finding recorded against him by the award of the Tribunal, he has a remedy of preferring an appeal against the award after obtaining a leave of the Appellate Court. If neither the owner nor the Insurer raises a contention before the Tribunal regarding the non-joinder of the driver, it is not open for them to contend in the appeal that the driver was a necessary party and that the award is vitiated because of non-joinder of the driver. The observations made by this Court in the case of New India Assurance Company Ltd., Aurangabad Vs. Suman Bhaskar Pawar and others (supra) in clause (iv) of paragraph No. 16 will apply only when specific defence of non- joinder of the driver is pressed into service either by the owner or by the Insurer. If they fail to raise the said contention, the same is not available for them in the appeal. Needless to say that the same will remain available to the driver who is not made party. As the law is that the responsibility of issuing the notice to the proper parties is entrusted to the Tribunal, if a contention regarding non-joinder is not raised, the claimant cannot be allowed to suffer on the ground that the Tribunal has failed to perform its duty. Even if a contention regarding non- joinder of driver is raised at the time of final hearing of a claim petition, if the said condition is correct, the Tribunal can issue notice to the driver at any stage.

IN THE HIGH COURT OF BOMBAY

First Appeal No. 1731 of 2010

Decided On: 21.11.2011

The New India Assurance Company Limited  Vs.  Sitaram Devidayal Jaiswal and Ors.

Hon'ble Judges/Coram:

Abhay Shreeniwas Oka, J.

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Whether owner of tenanted property is necessary party to eviction suit against tenant?

 Mr. Dani, however, submitted that the petitioners, who
according to him, are admittedly the owners of the suit
property, are at least a proper parties to R.A.E. Suit No. 1148
of 2013 and therefore, were required to be impleaded as

parties to the suit. He submits that the petitioners in this case,
are entitled to contend that they do not want a decree of
eviction against their tenants on the ground of default in
payment of rent. In the alternate, the petitioners are entitled
to contend that the vacant possession of the suit premises be
restored to the petitioners than to plaintiff, who has per his
own pleadings in the plaint, claims to be only a rent collector.
15] Order 1 Rule 10(2) of the Code of Civil Procedure 1908
(CPC) entitles the Court, at any stage of the proceedings,
either upon or without the application of either party, and on
such terms as may appear to the Court to be just, order that
the name of any party improperly joined, whether as plaintiff
or defendant, be struck out, and that the name of any person
who ought to have been joined, whether as plaintiff or
defendant, or whose presence before the Court may be
necessary in order to enable the Court effectually and
completely to adjudicate upon and settle all the questions
involved in the suit, be added. The object of the rule is not to
change the scope or character of the suit by adding new
parties and to enable them to litigate their own independent
suit but simply to hold them to avoid unnecessary litigation

which might otherwise become necessary. The main object of
this rule is also not to prevent multiplicity of actions, even
though it may, incidentally, have that effect. The person to be
joined must be one, whose presence is necessary as a party.
When a right is claimed against him and when it is not
possible to pass an effective decree in his absence, he
becomes a necessary party. Similarly, if an adjudication is
likely to affect a party, then, ordinarily, joinder of such party is
necessary so as to effectually and completely settle the issue
between the parties and grant comprehensive relief.
16] In this case, as noted earlier, considering the nature of
the suit and the relief claimed, it cannot be said that the
petitioners were necessary parties to R.A.E. Suit No. 1148 of
2013. Mr. Dani, however, submits that the petitioners are atleast
proper parties and therefore, discretion exercised by the
Small Causes Court in ordering the petitioners' joinder was
incorrectly interfered with by the Revisional Authority.
17] Order 1 Rule 10(2) of the CPC confers a wide discretion
to the Court to meet the every case of joinder or nonjoinder
of parties. However, discretion is required to be exercised not

arbitrarily, but on judicial principles. Ordinarily, the plaintiff is
the dominus litus. However, joinder can be ordered even
against the wishes of the plaintiff, if the situation, so
demands. The power to order joinder is normally confined in
two cases:
(i) When a party ought to have been joined, but is
not joined (necessary party); and
(ii) When, without presence of such party, the
question involved in the case cannot be effectively
decided (proper party).
18] The petitioners in this case, has failed to make out a
case that they are necessary parties to R.A.E. Suit No. 1148 of
2013. The reliefs applied for in the suit are perfectly capable
of being granted or refused without presence of the
petitioners. Any relief granted or finding recorded in R.A.E.
Suit No. 1148 of 2013 cannot, affect the rights, if any, of the
petitioners to suit property, regards which, there are already
several litigations pending between the parties. In fact, the
joinder of the petitioners in R.A.E. Suit No. 1148 of 2013,
might have the effect of altering the very character of such
suit and introducing a litigative front between the plaintiff

and the petitioners in the context of their respective rights
qua the agreement dated 8th January 1984 and the irrevocable
POA. Such disputes are quite alien to proceedings in R.A.E.
Suit No. 1148 of 2013.
19] In the absence of the petitioners, it is not as if R.A.E.
Suit No. 1148 of 2013 cannot be completely or effectively
decided. The presence of the petitioners is not necessary for
determination of real matter in dispute. The presence of the
petitioners is not necessary for effectual and complete
adjudication of all the questions involved in R.A.E. Suit No.
1148 of 2013. Thus construed, it cannot be said that the
petitioners are either necessary or proper parties insofar as
R.A.E. Suit No. 1148 of 2013 is concerned.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 5624 OF 2017

Mr. Peter Cajetan Travasso vs. Shri. Lal Bherumal Laungani 
CORAM : M. S. SONAK, J.

Dated : 10th October 2017.

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Whether third person claiming title can get his rights adjudicated in eviction proceedings?

There are some well-settled principles of law on the question involved in this appeal, which need to be taken into consideration while deciding the question arose in this appeal. These principles are mentioned infra.

12. 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)

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 3018 of 2008

Decided On: 25.01.2018

Kanaklata Das Vs. Naba Kumar Das 

Hon'ble Judges/Coram:

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

Citation:  (2018) 2 SCC 352

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Whether other co-owner of tenanted premises is necessary party in eviction suit filed by one co-owner?

 As regards the relevance of the issue of title of the landlord in an eviction suit under rent laws it is fairly well settled that the impleadment of co-owner/co-sharer to the proceedings is not essential as eviction proceedings can normally be decided on merits in absence of such co-owner/co-sharer. In an eviction suit filed by the landlord, only landlord and tenant are necessary parties and in view thereof title of landlord in an eviction suit is not relevant. If the landlord fails to prove his title but proves relationship of landlord and tenant, and proves existence of any ground pleaded for eviction then his suit would succeed. On the other hand, if the landlord proves his title but fails to prove relationship of landlord and tenant, then his suit would fail.

IN THE HIGH COURT OF ALLAHABAD

Matters Under Article 227 No. 3406 of 2019

Decided On: 09.05.2019

Shahnaj Begum Vs.  Taj Mohammad and Ors.

Hon'ble Judges/Coram:

Dr. Yogendra Kumar Srivastava, J.

Citation:2019 (134) ALR 800.

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Whether occupier of dilapidated building are necessary party to suit challenging notice issued by Municipal corporation for demolition?

A perusal of section 354 however indicates that the said provision can be pressed in service when the structure occupied by the occupier or the owner of the building is in a dilapidated or ruinous condition. In this case, the notice was issued in respect of the entire building and not any particular tenement. Some of the other occupants who were not impleaded as a party defendants to the suit, therefore rightly applied for their impleadment before the learned trial judge on the ground that if any order is passed by the City Civil Court in the said suit impugning the notice issued by the Municipal Corporation under section 354 of the Act, they would be seriously affected. 

12. In my view, the other occupants who are also issued similar notices under section 354 of the Mumbai Municipal Corporation Act may be seriously affected if any order is passed by the City Civil Court in respect of such notice under section 354 which was admittedly issued in respect of the entire building and not a particular structure occupied by the plaintiffs alone. Any order that may be passed by the City Civil Court thus would obviously affect all the occupants and not the plaintiffs alone. In my view the presence of all the occupants thus would be absolutely necessary for the purpose for determining the controversy involved in the said suit.

IN THE HIGH COURT OF BOMBAY

Writ Petition Nos. 5699, 6582, 6583 and 6584 of 2018

Decided On: 22.10.2018

 Mahesh D. Jobanputra  Vs.  Municipal Corporation of Greater Mumbai and Ors.

Hon'ble Judges/Coram:

R.D. Dhanuka, J.

Citation: 2019(2) MHLJ 458

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Whether abatement of final decree proceeding is set aside if court has permitted prayer for bringing legal heirs on record?

In my considered opinion, having regard to the fact that the present proceedings are, though not the execution proceedings in a strict sense of the term, even then, they are the Final Decree proceedings, in which the shares of the parties in a Partition Suit are determined and partitioned. In such situation, when during the pendency of that proceeding, husband of the Petitioner has expired, then, as held by the Apex Court in the above-said Judgment, the Trial Court should not have adopted such a technical approach of insisting on the application for setting aside the abatement. The very fact that the Applicant was seeking her impleadment in the proceedings as legal heir of her husband, indirectly, represents that she was also requesting for setting aside the abatement, if any has occurred, against her husband. Hence, the impugned order passed by the Trial Court, by adopting the technical approach of insisting on separate application for setting aside the abatement, needs to be set aside; considering the legal position enunciated above, the nature of litigation itself and the fact that such application was filed in the Final Decree proceedings.

IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 57 of 2016

Decided On: 28.02.2018

 Anuradha Vasantrao Ghorpade Vs. Sayajirao Tatyasaheb Ghorpade and Ors.

Hon'ble Judges/Coram:

Dr. Shalini Phansalkar Joshi, J.
Citation: 2018(3) MHLJ 687

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