Madhya Pradesh: Under which circumstance motor accident claim appeal is liable to be dismissed on account of non joinder of necessary parties?

Being not satisfied with the amount of compensation awarded by the learned Tribunal, the two legal representatives Hemlata and Manisha filed the present appeal joining initially in the array of respondents the third legal representative Smt. Mangala Ben, mother of the deceased as the respondent No. 4. But subsequently on 27-9-1978, the appellants have without good reason decided to delete the name of the third legal representative Mangala Ben from the array of respondents and deleted her name from the array of respondents. But deletion of her name has brought about a serious defect in the appeal inasmuch as all the necessary parties are not joined in the memo of appeal. The appeal, is, therefore, not properly constituted and only on this ground, the appeal must fail. {Para 6}

 IN THE HIGH COURT OF MADHYA PRADESH (INDORE BENCH)

Decided On: 23.04.1986

Hemlata Devi and Ors. Vs. Gurudayal and Ors.

Hon'ble Judges/Coram:

R.K. Varma and G.G. Sohani, JJ.

Author: R.K. Varma, J.

Citation: MANU/MP/0225/1986, (1986)2ACC129.

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Karnataka HC: Whether insurance company can be held as aggrieved party if husband of deceased is not added as party to motor accident claim petition?

It is to be borne in mind that the necessary parties are those without whose presence, the Court cannot determine the real matter or controversy between the parties in dispute. It is also settled principles of law that no suit/petition shall be defeated by reason of mis-joinder or non-joinder of parties if such defect does not affect the merits of the case or jurisdiction of the Court; the Court has to deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. When a case has been tried on merits it cannot be reversed purely on technical grounds unless it has resulted in failure of justice. In the case on hand the Tribunal has effectively decided the liability of the insurer in respect of dependents or claimants without a person who being a legal heir was not dependent on the deceased. Therefore, the contention of the insurer that the claim petition was bad for non-joinder of necessary party, the husband of the deceased who is one of the legal heirs is not tenable. {Para 22}

23. Even otherwise the insurer cannot be said to be an aggrieved party if the husband is not arraigned as one of the parties to the claim petition; arguably he also could have had a share in what has been awarded, is true. Thus, addition or non-addition of husband as a party in no way diminishes the liability of the insurer.

 IN THE HIGH COURT OF KARNATAKA (KALABURAGI BENCH)

Miscellaneous First Appeal No. 200220/2015 (MV)

Decided On: 08.09.2020

The Manager, Oriental Insurance Co. Ltd. Vs. Raju and Ors.

Hon'ble Judges/Coram:

Dixit Krishna Shripad and P.N. Desai, JJ.

Author: P.N. Desai, J.

Citation: MANU/KA/3151/2020.

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Jharkhand HC: Whether motor accident claim petition can be rejected on the ground that some of legal heirs of deceased are not added as party to the petition?

 Matter for consideration is whether all the heirs are a necessary party in a claim case. Compensation is assessed on the basis of dependency and not on heirship. Only those who are the dependents shall be entitled to compensation. The entire concept of computation of compensation arising out of the death is based on calculation of the amount on dependency. In Sarla Verma v. DTC, MANU/SC/0606/2009 : (2009) 6 SCC 12 it is held that if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant. The learned Tribunal thus committed a gross error to dismiss the claim application merely on the ground that the all the children of the deceased had not been impleaded. In any case any of the party or parties could have been impleaded as dependants and ordered accordingly. {Para 8}

IN THE HIGH COURT OF JHARKHAND AT RANCHI

M.A. No. 223 of 2012

Decided On: 13.04.2022

Ugni Bibi Vs. Gobind Ram Hathampuria and Ors.

Hon'ble Judges/Coram:

Gautam Kumar Choudhary, J.

Citation: 2024(3) TAC (Jhar), MANU/JH/0275/2022.

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Whether it is necessary to take objection as to non-joinder of necessary party before trial court?

 On the other hand, when the Plaintiff itself persists in not impleading a necessary party in spite of objection, the consequences of non-joinder may follow. However, the said objection should be taken in the trial Court itself so that the Plaintiff may have an opportunity to rectify the defect. The said plea cannot be raised in this Court for the first time. This position has been reiterated in State of U.P. v. Ram Swarup Saroj MANU/SC/0153/2000 : (2000) 3 SCC 699. We hold that a plea as to the non-joinder of the party cannot be raised for the first time before this Court if the same was not raised before the trial Court and has not resulted in failure of justice. 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.

 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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Whether the court can dismiss the suit for non joinder of necessary party?

 It could thus be seen that a "necessary party" is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the court. It has been held that if a "necessary party" is not impleaded, the suit itself is liable to be dismissed. {Para 18}

19. As already discussed hereinabove, the Plaintiff himself has admitted in the plaint that the suit property is jointly owned by the Defendant, his wife and three sons. A specific objection was also taken by the Defendant in his written statement with regard to non-joinder of necessary parties. Since the suit property was jointly owned by the Defendant along with his wife and three sons, an effective decree could not have been passed affecting the rights of the Defendant's wife and three sons without impleading them. Even in spite of the Defendant taking an objection in that regard, the Plaintiff has chosen not to implead the Defendant's wife and three sons as party Defendants. 

21. In view of the Plaintiffs own admission that the suit property was jointly owned by the Defendant, his wife and three sons, no effective decree could have been passed in their absence.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 5755-5756 of 2011

Moreshar Yadaorao Mahajan Vs.  Vyankatesh Sitaram Bhedi (D) thr. L.Rs. and Ors.

Hon'ble Judges/Coram:

B.R. Gavai and C.T. Ravikumar, JJ.

Author: B.R. Gavai, J.

Decided On: 27.09.2022

Citation: MANU/SC/1251/2022

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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 court can direct parties to include more properties in suit for partition?

 Party to the suit cannot be forced or compelled to include the properties which are found in Exhibits before the Court as is done in the present case. The Trial Court has misdirected itself while passing the impugned judgment in the present suit. The preliminary issue with regard to whether the suit is bad for non-joinder of necessary parties and whether the suit of the plaintiffs is for partial partition as such the suit is not maintainable, are the issues which are to be answered along with other issues in the suit. The Trial Court fell into error in not answering all the issues. The Trial Court has committed an error in directing the parties to include the properties mentioned in Ex. D4 to Ex. D7. It is for the parties, either the plaintiffs or defendants to include the properties to the suit schedule for partition. 

IN THE HIGH COURT OF KARNATAKA

Writ Petition No. 44513 of 2014 (GM-CPC)

Decided On: 06.08.2018

C.S. Sundaresha  Vs. C.S. Ananthalakshmi and Ors.

Hon'ble Judges/Coram:

Shankar Ganapathi Pandit, J.

Citation: AIR 2019 Karnat 5

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Whether in suit for recovery of possession it is necessary to join person who had actually dispossessed plaintiff?

7. On plain reading of the said provision it becomes clear that cause of action for suit arises when any person is dispossessed without his consent of immovable property otherwise than in due course of law. The relief that can be claimed in such a suit is of recovery of possession. This would mean that person who is in possession of such immovable property of which the plaintiff was dispossessed without his consent and otherwise than in due course of law would be a necessary party to the suit for claiming the relief effectively. If persons who have dispossessed are in possession of the property in question, they would obviously be necessary parties for recovery of possession in a suit under Section 6 of the Act. However, if dispossession is done through the agency of some persons who have passed on the possession to other persons, the latter being in actual possession from whom recovery can be sought, would be necessary parties for claiming an effective relief under Section 6 of the Act. The suit filed against those who are in actual possession for recovery of the immovable property under Section 6 of the Act can be effectively decided even in absence of the agents who have dispossessed plaintiff and transmitted the possession to the defendants. Therefore, the approach of the trial Court that in absence of the persons, who had dispossessed the plaintiffs having been made parties to the suit, the relief under Section 6 could not be granted against those who are actually in possession of that property is wholly misconceived and not warranted by the provisions of Section 6 of the said Act. in Virjivandas Madhavdas v. Mohammed All Khan, reported in ILR 5 Bom 208, the Bombay High Court in context of section 9 of the specific relief act, 1877 held that a person who has been ejected from his property in suing to recover it under section 9 of the specific relief act, 1877, may sue the actual ejector or the person under whose order or by whose authority the actual ejector had acted, or he may sue both; but the wrong doer who has taken possession is the one from whom primarily it is to be reclaimed. Therefore a suit filed against persons from whom possession is to be primarily reclaimed under Section 6 of the said Act can be decided notwithstanding that those who had actually dispossessed the plaintiffs were not made parties to the suit."

(emphasis supplied)

29. In the present case also, therefore, as it is the Applicant who is in actual possession of the suit property, the suit filed against him alone, without joining the agency of Recovery Officer from whom he has received the said possession, is definitely maintainable.

IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 455 of 2016

Decided On: 05.04.2018

 Kadir Ilahi Bagwan Vs. Usha  Anandrao Yadav

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When appeal can be dismissed for non joinder of persons who were parties before lower court?

 Perusal of the said grounds demonstrates that they directly concern defendants in the pending suit who have not been made parties to the appeal. Therefore, when the appellate Court is called upon to pronounce upon such grounds and contentions connected therewith that would be raised on behalf of the respondent, findings would be rendered by the appellate Court behind the back of defendants who have not been made parties in the appeal. This cannot be countenanced as no Court can pass orders or make observations and render findings against parties who are not before it, particularly when they are parties in the main suit and proceedings pending before the trial Court and yet they have not been made parties in the appeal. The appellate Court would necessarily be called upon to analyze the entire chain of events leading to the sale-deed dated 16.12.2015 and Deed of Assignment dated 07.04.2016 executed in the present case, which involves not only the applicants (defendant Nos. 5 to 8), but also all other defendants who are involved at one stage or the other in such chain of events. The appellate Court would also be called upon to render prima facie findings not only on such chain of events but also on the claims made by the respondent that earlier proceedings in civil suits filed between the defendants inter se and orders passed therein were based on collusion and fraud. Any findings rendered by the appellate Court on such serious issues, even if prima facie in nature as appeal is against rejection of temporary injunction application, cannot be passed in the absence of all the defendants being parties to the appeal. The appellate Court lost sight of this vital aspect while passing the impugned order and rejecting the application of the applicants only on the ground that in the temporary injunction application, relief was sought by the respondent only against the applicants herein.

15. The reliance placed by the learned Counsel appearing on behalf of the applicants on the judgments of the Hon'ble Supreme Court and High Courts mentioned above, is appropriate. In its judgment, in the case of Ch. Surat Singh (dead) and others v. Manohar Lal and others (supra), the Hon'ble Supreme Court has held that the contention that a particular person had no interest in the suit premises could not be gone into in his absence and that therefore, such appeal in which the said person was not a party deserved to be dismissed. On the same lines, Full Bench of Kerala High Court in the case of Ammukutty Amma and another v. Madhavi Amma (supra) has held that in a situation where necessary parties were left out and not made parties in an appeal, such appeal deserved to be dismissed and the Court could not exercise power under Order 41 Rule 20 of the Code of Civil Procedure to permit those not made parties to the appeal to be added as parties. The Madhya Pradesh High Court in the case of Saraswatibai v. Durga Sahai and others (supra) has held that when a lis was lifted from the trial Court to the first appellate Court, parties who were necessary to the suit have also to be regarded as parties necessary to the appeal preferred against the judgment and decree rendered therein. 

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Civil Revision Application (CRA) No. 106 of 2017

Decided On: 13.04.2018

Gopal Narayandasji Panpaliya  Vs.  Riyaj Patel

Hon'ble Judges/Coram:

Manish Pitale, J.

Citation: 2018(6) MHLJ 114

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When it is not permissible for daughter to file suit for partition of ancestral property?

 As regards the contention of the plaintiffs about their non joinder in the earlier suit, at the time when the suit was filed in the year 1991 they were not having any right of coparceners in the suit property. Their own father has filed the said suit, therefore, he was very much alive and hence they cannot contend that they were necessary parties to that suit. If on their own showing, that they are claiming through their father and as their father was very much representing their interests, they are estopped from contending that for their non joinder in the earlier suit, the judgment and orders therein are vitiated.

IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 637 of 2016

Decided On: 14.03.2018

Sarjerao Dhondiba Sarode Vs. Kamal Kerubhau Pachange and Ors.

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Whether one legal heir of tenant can claim tenancy without making other legal heirs party to suit?

At this stage Mr. Ghaisas, the learned Advocate appearing for respondent No. 3 appeared in Court and sought leave to make submissions in the matter. On leave being granted, he submitted that in the case in hand there was no dispute that the rent receipts were issued in favour of the respondent No. 2 alone and therefore there was no need of filing the suit against the petitioner or Joining the petitioner as party to the said Civil Suit No. 170 of 1970. The learned Advocate for the respondent No. 3 however was unable to point out any provisions in law which besides contending about exclusive tenancy rights in favour of the person in whose name the receipts are issued pursuant to the death of the original tenant. Merely because the person in whose name receipts are issued happened to be one of the legal heirs of the original tenant, the right of other heirs are not wipped off. In fact, the law in this regard is well established as already stated above i.e. upon death of the original tenant, tenancy rights are inherited by all the legal heirs. At the cost of repetition it can be stated that the Trial Court has found that the petitioner was residing with the original tenant and he is one of the legal representatives of the original tenant. Applying the test laid down by the Apex Court in the decision referred above, the petitioner was clearly a necessary and proper parly to the suit and in the absence thereof, the decree passed in Civil Suit No. 170 of 1970 cannot be held to be binding upon the petitioner.

Bombay High Court

Ramesh Shankar Kale vs Madhav Bhimshankar Wadnere & Ors. on 7 July, 2000

Equivalent citations: (2001) 2 BOMLR 945

Bench: R Khandeparkar

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Whether provision of Civil procedure code relating to appeal is applicable to revision?

The provision, in our view, is crystal clear. No decree can be reversed or substantially varied in appeal on account of misjoinder or non-joinder of parties. Under Section 141 of the Code of Civil Procedure, procedure under the Code in regard to suit shall be followed as far as it can be made applicable to proceedings in any Court of Civil jurisdiction. Therefore, what is provided Under Section 99 of the Code of Civil Procedure in respect of appeal would apply to revision as well.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2014/2009

Decided On: 23.03.2017

Manti Devi and Ors. Vs. Kishun Sah and Ors.

Hon'ble Judges/Coram:

Kurian Joseph and R. Banumathi, JJ.

Citation:(2018) 12 SCC 500

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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 plaint can be rejected for non disclosure of cause of action in suit for specific performance?

Again in para No. 15, there are averments as to the exact cause of action. Therefore it cannot be said that the plaint was conspicuously silent about the cause of action against the present petitioners. The law is well settled that at the stage of deciding the application for rejection of the plaint under Order VII Rule 11 CPC on the count that it does not disclose the cause of action, the averments in the plaint are to be taken at their value value and for that purpose, entire plaint as a whole is required to be read.

10. Here in the case, wholistic reading of the plaint clearly discloses the cause of action against the present petitioners. Averments in the plaint clearly go to show that the present petitioners had previously entered into the agreement regarding their respective fields with defendant No. 3 Dinesh and thereafter on the basis of that agreement, Dinesh has entered into agreement of sale with the plaintiff-respondent and obtained substantial amount of consideration from the plaintiff, subsequent thereto these present petitioners executed different sale deeds in favour of different persons in respect of the same property. Therefore, when the plaintiff's suit is not only for specific performance of contract, but also for the possession and injunction, then there is definitely a cause of action for the plaintiff to sue the present petitioners also. Therefore, on the bare reading of the plaint, it cannot be said that no cause of action was disclosed by the plaintiff to sue the present petitioners.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Civil Revision Application No. 94/2016

Decided On: 22.06.2017

 Ayyub Shah Haidar Shah and Ors. Vs. Ajay Dhananjay Daware and Ors.

Hon'ble Judges/Coram:

Dr. Shalini Phansalkar Joshi, J.

Citation: 2018(1) MHLJ 188

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Whether third party can be impleaded as tenant in eviction petition?

It is surprising as to how the petitioner could have made these averments when admittedly no independent proceedings were filed by her to seek a declaration of her rights as a tenant except for the fact that the petitioner has some other motives, as these averments reflect. Secondly it cannot be overlooked that if such a plea is accepted, an assertion which is completely alien to the requirement of law for the court to be satisfied to consider any application under Order 1 Rule 10 of the C.P.C. would be accepted. A plain look at the averments in paragraph 14 (supra) of the impleadment application, in my opinion, reveals the real intention of the petitioner.

25. Thus there is much substance in the contention as urged on behalf of respondent No. 1. The reliance of Mr. Gorwadkar on the recent decision of the Supreme Court in "Nandkishor Savalaram Malu (dead) through L.Rs. v. Hanumanmal G. Biyani (dead) through L.Rs." (supra) is apposite, in contending that the only necessary party to the suit in question was respondent No. 2 -the tenant, and the petitioner would not become a necessary or a proper party. This was a case in which the appellant had impleaded defendant No. 1 who was an employee of the tenant firm. The tenant firm had suffered a decree, however, the suit was dismissed against defendant No. 1. Aggrieved by the learned trial Judge not passing a decree against defendant No. 1, plaintiff No. 2 filed an appeal before the learned District Judge who allowed the appeal and decreed the suit against all the defendants and held that defendant No. 1 being an employee of the firm is bound by the decree passed against the firm and its partners (defendant Nos. 2 to 9). The High Court in revision upset the order passed by the learned District Judge and maintained the order passed by the learned trial Judge. This order of the High Court came to be challenged in the proceedings before the Supreme Court. It is in this context, their Lordships of the Supreme Court made following observations in paragraph 30 which read thus:-

"30. As a matter of fact, in our view, it was not necessary for the appellants to have impleaded defendant No. 1 in the present rent proceedings. The reason being that in rent proceedings the lessee/tenant is the only necessary or/and proper party and none else. A person, who claims through lessee/tenant, is not a necessary party".

26. Further Mr. Gorwadkar, learned Senior Counsel for respondent No. 1 would be correct in submitting that the Court in considering the impleadment application under the provisions of Order I Rule 10 of CPC for impleadment of a third party, the question of limitation becomes relevant considerating the provisions of Order I Rule 10 Sub-rule (5) of Code of Civil Procedure. This for the reason that by such impleadment, the basic cause which was asserted at the time of filing of suit and in the present case in the year 1982 when the suit came to be instituted by respondent No. 1 is sought to be altered by the impleadment application of the petitioner. The effect of amendment, therefore, relates back to the basic cause of action which accrued to respondent No. 1 in the year 1982 and for that matter in the year 1995 when the second suit came to be filed. Mr. Gorwadkar's reliance on the decision of the Supreme in Alkapuri Co-op. Housing Society Ltd. v. Jayantibhai Naginbhai (deceased) through LRs. (supra) in supporting this proposition, is apposite. The Supreme Court in a similar context has made the following observations:-

"15. It is neither in doubt nor in dispute that the court's jurisdiction to consider an application for amendment of pleading is wide in nature, but, when, by reason of an amendment, a third party is sought to be impleaded not only the provisions of O.VI R.17, Code of Civil Procedure (C.P.C.) but also the provisions of O. I R. 10, C.P.C. would come into play. When a new party is sought to be added, keeping in view the provisions of sub- rule (5) of Rule 10 of Order I, C.P.C., the question of invoking the period of limitation would come in."

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 2446 of 2017

Decided On: 19.09.2017

Minalini Lalit Modi Vs. Kishinchand Chellaram and Ors.

Hon'ble Judges/Coram:

G.S. Kulkarni, J.

Citation: 2017(2) RCR (Rent) 459

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Whether some members of unregistered society can file eviction suit on behalf of society?

 Therefore, it follows from the aforesaid authoritative pronouncement of the Humble Supreme Court that the care must be taken to ensure that necessary party is before the Court, be it a Plaintiff or Defendant, otherwise, the suit or the proceedings will have to fail. 26. The contention of the counsel for the Respondents that in case of Singhai Lal Chand Jain (dead) v. Rashtriya Swayamsewak Sangh, Panna and Ors. MANU/SC/0323/1996 : (1996) 3 SCC 149,the Supreme Court has taken a view that the decree passed in the suit will not be a nullity on the ground of mere not seeking a permission of the Court under Order I Rule 8 of the Civil Procedure Code and, therefore, in the instant case also merely because no permission is taken from the Court to institute the suit in the representative capacity, would not nullify the decree, is not acceptable. From the reading of the facts in case of Singhai (supra), eviction suit filed against the Respondent and represented by the Manager, the President who was practicing Advocate, and also member, and all the three were prosecuting the suit. Therefore, in that case eviction suit was filed against the registered body through its Manager, President and member and all the three persons were competent to file the suit. Therefore, in the facts of that case, the Hon'ble Supreme Court had taken that view. However, in the instant case, admittedly the Respondent No. 1 is unregistered. It is not registered Society or Trust etc. Therefore, it was open for all 262 members to institute the suit. The 5 Plaintiffs who instituted and prosecuted the suit have not prosecuted the suit in representative capacity by taking the permission from the Court as contemplated under the provisions of Order I Rule 8 of the Civil Procedure Code. Therefore, the suit which was instituted by the Respondent No. 1 should have been filed by joining all its 262 members who were necessary parties to the suit. If at all the Respondent No. 1 wanted to file the representative suit, in that case, it was open for them to institute a representative suit by following the procedure prescribed under Order I Rule 8 of the Code of Civil Procedure Code. In the present case, the suit was instituted in the name of Mandal through its President and 5persons, who according to the Respondent No. 1are panchas of the Mandal. The defect in the institution of suit is fatal to the maintainability of the suit itself. Therefore, in my opinion, taking overall view of the matter, it will have to be concluded that the suit which was instituted by the Respondent No. 1 through its President and 5 other Plaintiffs who are alleged to be the panchas of the Mandal, was not maintainable in absence of joining all 262 members as party to the suit. I also find force in the arguments of the counsel for the applicants that, if at all the possession of the suit property is to be handed over, it will have to be handed over to the 5Plaintiffs who are no more. Since the institution of the suit itself suffers from non joinder of necessary parties and the defect in the institution of the suit is fatal to the maintainability of the suit, handing over possession to the individuals who stepped in the shoes of 5 original Plaintiffs who died during the pendency of the suit, would even cause damage and prejudice to the interest of the Respondent No. 1 itself. Therefore, though there are concurrent findings of the fact that the Respondent No. 1 is entitled to decree for bonafide requirement, the defect in the institution of the suit is fatal to the maintainability of the suit and, therefore, the suit should necessarily fail.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Civil Revision Application No. 202 of 2007

Decided On: 21.07.2011

Gorakh Hilal Patil and Smt. Shantabai Hilal Patil Vs.  Parit Samaj Seva Mandal

Hon'ble Judges/Coram:

S.S. Shinde, J.

Citation: 2010(2) MHLJ 177

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Whether decree can be set aside on account of misjoinder or non-joinder of parties?

 Learned senior counsel, inviting our attention to
Section 99 of the Code of Civil Procedure, contends
that no decree shall be reversed or varied
substantially on account of non-joinder or misjoinder
of parties. Section 99 of the Code of Civil
Procedure reads as follows:-
“99. No decree to be reversed or modified
for error or irregularity not affecting
merits or jurisdiction.- No decree shall
be reversed or substantially varied, nor
shall any case be remanded, in appeal on
account of any misjoinder or non-joinder
of parties or causes of action or any
error, defect or irregularity in any

proceedings in the suit, not affecting
the merits of the case or the
jurisdiction of the court:
Provided that nothing in this section
shall apply to non-joinder of a necessary
party.”
5. The provision, in our view, is crystal clear. No
decree can be reversed or substantially varied in
appeal on account of misjoinder or non-joinder of
parties. Under Section 141 of the Code of Civil
Procedure, procedure under the Code in regard to suit
shall be followed as far as it can be made applicable
to proceedings in any Court of Civil jurisdiction.
Therefore, what is provided under Section 99 of the
Code of Civil Procedure in respect of appeal would
apply to revision as well.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S). 2014/2009

MANTI DEVI  Vs  KISHUN SAH @ KISHUN DEO SAO & ORS. 
Dated:MARCH 23, 2017.
Citation: AIR 2017 SC 2002

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Basic principles for determining Whether a person is necessary party to proceeding

 It is a settled principle of law regarding impleadment that though the plaintiff is dominus litis; however, for determining whether a person is a necessary party; two tests are to be satisfied, viz. (i) there must be a right to some relief against such party in respect of manner in the proceeding in question; and (ii) it should be possible to pass an effective decree in the absence of such party [Please see Deputy Commissioner v. Ramkrishna, MANU/SC/0112/1953 : AIR 1953 SC 521].

14. Even the principle of law laid down by the decisions relied on by the petitioner is in consonance with the law laid down in Deputy Commissioner (supra).

15. The impugned order when adjudged on the basis of above analysis cannot be given the stamp of approval, as it takes into consideration only one of the reliefs sought i.e. the declaration that Will in question is null and void and had glossed over the relief of declaration of title on the basis of Memorandum of Oral Hiba.

16. Though a reliance is placed by respondent No. 1 in the decision rendered by the Apex Court in Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay, MANU/SC/0493/1992 : (1992) 2 SCC 524 wherein it is held-

"14. It cannot be said that the main object of the rule is to prevent multiplicity of actions though it may incidentally have that effect. But that appears to be a desirable consequence of the rule rather than its main objectives. The person to be joined must be one whose presence is necessary as a party. What makes a person a necessary party is not merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness. It is not merely that he has an interest in the correct solution of some questions involved and has thought or relevant arguments to advance. The only reason which makes it necessary to make a person a party to an action is that he should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party. The line has been drawn on wider construction of the rule between the direct interest or the legal interest and commercial interest. It is, therefore, necessary that the person must be directly or legally interested in the action in the answer, i.e., he can say that the litigation may lead to a result which will affect him legally that is by curtailing his legal rights. 

IN THE HIGH COURT OF MADHYA PRADESH (JABALPUR BENCH)

W.P. No. 13246 of 2013

Decided On: 17.08.2016

Sharmila Tagore and Ors.

Vs.

Saidullah Khan and Ors.

Hon'ble Judges/Coram:

Sanjay Yadav, J.

Citation: AIR 2017(NOC) 37 MP

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When suit for eviction of tenant is not bad for non joinder of necessary parties?

The   issue,   therefore,   would   remain   as   to
whether a suit for eviction against some of the legal
representatives of the deceased tenant would be tenable.
The   record   in   the   present   case   would   show   that   the
plaintiff had issued notice to the defendants No. 1 and
2 directing them to pay the rent.  The same was replied
by the defendants No. 1 and 2 without specifying that
they alone are not occupying the suit premises but their
sisters,   being   the   legal   representatives   of   deceased
tenant, would be liable to pay the rent.   The plea is
taken in the written statements that the deceased also
left behind “2 daughters”.

 In   some   of   the   cases,   the   exparte   decree   in
favour   of   the   tenant   was   passed   as   the   legal
representatives of the deceased tenant, who were joined
as   defendants   to   the   exclusion   of   others   remained
absent.
. In  the case of “Surayya Begum (Mst) V. Mohd.
Usman and others” (cited supra), relied on by Mr. Shah,
the law on the subject   has been thoroughly discussed.
The   ratio   would   show   that   as   to   whether   failure   to
implead one or the other heir/s of deceased tenant as a
party, would render the eviction decree not executable,
depends upon the facts and circumstances of a particular
case.   It was held that if the interest of the person
not   impleaded   bonafide   represented   by   the     co­heir,
objection   to   the   execution   of   the   decree   would   be
unsustainable. However, in case of collusive or malafide
exclusion of heir from impleadment, such objection wouldbe sustainable.  Reliance was placed by Their Lordships
on the Explanation­VI of Section 11 of the Code of Civil
Procedure.
18. In   a   way,   if   it   would   an   effective   class
representation,   then   as   per   the  Explanation­VI   to

section 11 of the Code of Civil Procedure, the issues
decided in the lis would be res judicata as against thelegal   heirs   not   impleaded   in   the   suit.     If   all   these
aspects   are   considered,   then   the   fact   that   the
defendants No. 1 and 2 in the present case did not, in
their   communication   earlier   to   the   litigation,
communicate   the   fact   of   having   other   legal
representatives to  the  deceased and thereafter  raising
of the said issue by amendment of the written statement
lateron in the trial court would show that if at all any
grievance of the sisters of the defendants No. 1 and 2
would   be   there,   the   plaintiff   would   very   well   be
entitled   to   show   that   they   were   litigating   bonafide
against present defendants No. 1 and 2.   At least, the
issue is not required to be decided in the present lis.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
 CIVIL REVISION APPLICATION NO. 112 OF 2012
Rameshchandra Daulal Soni,

V
 Devichand Hiralal Gandhi,

   CORAM : M.T. JOSHI, J.

DATED  : 20th JULY, 2015
Citation:2016(6) ALLMR 63

Read full judgment: click here

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