NAME: ANSHITA AGRAWAL

ID: 2454

COURSE: CIVIL PROCEDURE CODE

PROJECT TOPIC: WHO IS A NECESSARY PARTY TO A SUIT? A

STUDY OF TESTS INDICATED BY THE SUPREME COURT.

1
 Introduction

It is not a very unusual scenario to witness cases, which have gone on for years, being
dismissed by the courts on the grounds of omission of necessary parties by the plaintiffs.
Even though the position of law is largely settled, parties repetitively fail to adequately
involve necessary parties. The incidence of costs incurred both by the parties and state are
huge. For the parties, it not only leads to wastage of time and money, but also prolongs the
suffering of the plaintiff due to denial of speedy remedy. Equally far-reaching is the effect on
the State as well. It leads to multiplicity of cases which clogs the already burdened courts.
Even so, the Courts routinely exercise their power to amend pleadings or dismiss suits in the
interest of justice. Suits which are strong on merits have collapsed due to nonjoinder of
parties.1 Consequently, understanding the law relating to necessary and proper parties
becomes very crucial to comprehend the above stated issue.

The object of this paper is essentially to analyse the context in which the courts exercise their
power under Order 1 Rule 10(2) of the Code of Civil Procedure’ 1908 (hereinafter the Code).
To understand the same, the paper covers Order 1 of the Code entirely. It outlines the theory
relating to necessary parties and the way its meaning has, through judicial interpretations,
evolved over time. Further, the paper discusses the implications that arise out of improper
party formation and exposes the extent of fatality of the same. Most importantly, the
researcher aims to bring to light how a rather simple procedural rule is so closely linked to
very crucial substantive rights of the parties and thereby help appreciate the role of
procedural law in rendering justice and the need for the Code to be studied as an “organic
whole”.2

Understanding the meaning of “necessary parties”

The existence of opposing parties is one of the four prerequisites of a suit 3. Opposing parties
can be classified into necessary and proper parties, both of which lack a statutory definition.
Nonetheless, Order 1 Rule 10(2) of the Code does provide insight into what necessary parties
1
Kanakarathanammal v VS Loganatha Mudaliar AIR 1965 SC 271. The facts of the case are that the Appellant
filed a suit for recovering properties as the only heir of her mother under the Mysore Hindu Law Women’s
Rights Act’ 1933. The case was instituted against the Respondents who had gotten possession of the property
through the will of the appellant’s father. Among other contentions raised by the Respondents, one of it was the
non-joinder of the appellant’s brothers who are also heirs to the property in question. Introducing them would
also raise the question of partition. Interpreting Order 1 Rule 10(2) of the Code, the Court held it mandatory to
implead all heirs of the property for the sake of adequate representation and therefore held the suit to be bad.
2
Sir Jack I.H. Jacob, The Fabric of English Civil Justice (The Hamlyn Lectures Thirty-Eight Series, 1987) 3.
3
C.K. Takwani, Civil Procedure (8th edn., Lexis Nexis 2017) 155.

2
mean. The opposing parties who are absolutely vital to the suit are referred to as necessary
parties.4 They are so important that without them a suit cannot be sustained. Simply put, they
are “indispensable”5 parties. On the other hand, proper parties are ones without whom an
order can be passed but without whom complete and effective ruling on the issue is not
possible.6 The courts have been vested with the discretionary power to decide whether they
want to include proper parties or not in a suit. Thus, the main difference is that necessary
parties have a right to be impleaded whereas proper parties do not possess that right.7

Some special statutes explicitly provide specifics on who is to be made a necessary party to
the suits under it.8 For instance, Section 82 of Representation of People’s Act’ 1951 mandates
all contesting candidates of the election in question to be made parties to the petition.
Similarly, Section 19 of the Specific Relief Act’1877 provides an exhaustive list of people
against whom specific performance of a contract can be enforced against. Likewise, there are
other legislations that prescribe necessary parties. However, unless a special law explicitly
identifies necessary parties, the CPC will hold good.9

Examining tests laid down by Indian courts

It was only in 1947, when a criterion for determining necessary parties was laid down by the
judiciary. According to the twin test put forth by the Allahabad High Court a) the party must
have a legal right to relief arising out of the subject matter of the particular litigation and b)
the courts should find itself disabled from passing any judgement in the absence of that
party.10 Reaffirming this test the Supreme Court, in Deputy Commissioner Hardoi v Rama

4
Mulla, The Code of Civil Procedure (18th edn., Lexis Nexis Vol 2)
5
Takwani, (n 2) 156.
6
Mulla (n 3).
7
ibid.
8
ibid.
9
Takwani (n 2) 157-158.
10
Benares Bank Ltd. v Bhagwandas AIR 1947 All. 18. The facts of the case are that the appellant had entered
into an agreement with the defendants(referred as mortagers in the judgement) to execute a sale deed for a said
property in consideration of full payment. The defendants failed to do so, and a suit for specific performance
was initiated which was decided in favour of the appellant. The defendants in return made an application under
S. 4 of the UP Encumbered Estates Act. While the proceedings were going on, the appellant filed a claim asking
the court to issue notice to the landlords and creditors of the property to refrain from declaring the property as
theirs in the Schedule of Properties. Since the appellant only included the landlord in his appeal, the creditors
raised an objection to it. The question that the court had to essentially deal with was whether all creditors were
to be added as Parties in administration of the asset.
The Court came up with the twin test mentioned above. When the appellants contended that only the creditors
who were active should be pleaded, the court replied that the prior conduct or engagement of the interveners was
not relevant and only their future interests should be taken into account. The Court also relied on three very
eminent judgements of the Oudh Chief Court. The court thereby directed the appellants to implead all the
creditors in pursuance of protecting their “valuable right”.

3
Krishna Narain11, provided that “a necessary party is one whose presence is indispensable to
the constitution of a suit and in whose absence no effective decree or order can be passed.”12

Elaborating further on who the necessary parties are, the Supreme Court interestingly made a
distinction between direct interest and commercial interest and held that only parties who
have the former are necessary in the suit. 13 The parties whose legal interests are immediately
affected by the subject-matter of the suit are necessary parties, and the parties whose potential
gain or loss is at stake are excluded 14. Interpreting this judgment, it can be seen that the Court
excluded those who did not deserve representation as only their indirect profit-oriented
interests were endangered. An example of what the Court intended to mean can be
understood from the case of Ishwar Singh & Ors. v Kuldip Singh & Ors.15 In this case it was
held that a petition challenging appointment of the selected candidates without impleading
them itself is not maintainable because it first-hand affected their legal interests.

In 2005, a three-judge bench of the Supreme Court was posed with the question of whether
third parties who claimed independent title to the property in question would constitute
necessary parties or not if the dispute was between 2 separate contractors. 16 Thereby the
Supreme Court further clarified how necessary parties are to be decided. In addition to the
twin test, the Supreme Court took into consideration the scope of the suit. It held that the

11
AIR (1953) S.C. 521. In this case, the Court was posed with the question of whether all the creditors (even the
ones who were not actively involved) should be added as parties in a case under Chapter 3 or 4 of the UP
Encumbered Estates Act’ 1934. The Supreme Court observed that the contractual rights of the creditors under
the Sections invoked would definitely be affected. It then took a rather middle-ground approach and held that
neither will every creditor be automatically impleaded in the suit nor will they be ignored entirely. The Supreme
Court did not answer the issue on its merits but guided the High Court to answer the same based on the adopted
twin test. It thereby remanded the case.
12
ibid.
13
Razia Begum v Anwar Begum [1959] SCR 1111. In the said case, the Supreme Court held that the other wives
and children of the party are not necessary parties if the dispute is only between the one wife and the husband.
Even though the result of the suit may affect the interest of all the members as their estate would be divided,
they still do not have any direct interest from the suit.
14
ibid.
15
1995 (1) SCC 179. The facts of the case are that the selection of 15 Inspectors was challenged. However, the
petitioner had not added any selected candidates other than 1 of them. The Supreme Court held that the petition
ought to have included the other 14 candidates as they had a legal interest in the matter and especially because
the appointment process had also been finalized. Thus, the Court remanded the case back to the High Court of
Madras.
16
Kasturi v Iyyamperumal & Ors AIR 2005 SC 2813. The Court was faced with the issue of whether an
independent claimant for title for possession could be pleaded as necessary party in a property dispute of the
same property. The Court importantly interpreted the phrase “all the questions involved in the suit” used in
Order 1 Rule 10(2) of the Code. This phrase was given the meaning of all the issues that arise from the subject
matter and has been limited to just those matters and no other collateral controversies. The Court also invoked
the rule of law and said that the appellant being the master of his suit cannot be forced to include parties who he
does not want to go up against and who do not have any direct interest. Thus, the Court rejected adding the
independent claimants to the suit.

4
issue was not about the title but about specific performance of a contract of sale. 17 Thus, the
idea that emerges from this case is that the parties who if added will change the nature of the
suit are not to be considered as necessary parties. Basically, the character of a suit should not
be expanded or so to say, altered. 18 . It should also be borne in mind that necessary witnesses
are not the same as necessary parties. Just because somebody possesses very significant
evidence does not make him/her a necessary party.19

Much recently, the Kerala High Court clarified that supplemental defendants were not
necessary parties and that courts have no jurisdiction to add parties unless they are proved to
be necessary or proper parties.20 This again reiterates the point that necessary parties are not
the ones who will help decide the dispute. The goal is not to reach the best possible outcome
by including them, the goal is to reach a fair outcome. Therefore, only the parties without
whom the suit cannot be “effectually and completely settled”21 are necessary.

Nonjoinder and Misjoinder of Necessary Parties

Generally, joinder of parties refers to multiple plaintiffs or defendants, or both. Order 1 Rule
1 of the Code spells out who may be joined as plaintiffs and a similar provision for
defendants is laid down in Order 1 Rule 3. The conditions for both the joinder of plaintiffs
and defendants was clarified by the amendment brought by Code of Civil Procedure
(Amendment) Act’ 1976. It elucidates two conditions that have to be satisfied to join parties:
a right of relief is to be sought from the subject matter and a common question or law or fact
has to be present. Even when these conditions are satisfied, the Court is not entirely bound to
join the defendants. The courts under Order 1 Rule 3(a) of the Code, have been conferred
17
ibid.
18
Bharat Karsondas Thakkar v M/S Kiran Construction Co. & Ors (2008) 13 SCC 658. (in passing)
19
ibid.
20
Thavarayil Salim v Thekkeveettil Karuvantevalappil Saru 2011 (3) KLT 280. The suit was brought by the
petitioner for specific performance of a sale agreement which the defendant denied having entered into. The
petitioner then filed an application to amend the plaint and add the supposedly attesting witness of the
agreement. The court placed reliance on Mumbai International Airport v Regency Convention Centre (2010) 7
SCC 417 (refer to Footnote 29) to hold that only necessary parties or proper parties can be impleaded. Invoking
the twin test, it held that attesting witnesses though are very crucial to the suit, are not the same as necessary
parties since their right is not the subject-matter nor will it be affected. Further an attesting witness need not be
aware of the contents of the document so her presence does not substantially help in adjudication. Thus, on the
following grounds the Court disallowed the witness from being impleaded.
21
Amon v Raphael Tuck & Sons Ltd (1956) 1 ALL ER 273. This phrase was used by J. Devlin while he was
laying out what necessary parties meant. The facts of the case were that there was a dispute between two parties
regarding a contract of “Fastik” pen. The intervener filed a petition to be joined as co-defendant as he wanted to
initiate a counterclaim against the plaintiff who was claiming to the the inventor of “Fastik”. J. Delvin observed
that there could be two interpretations to the rule of necessary parties; one wider and one narrower. He then
accepted the narrower interpretation and held that in this case the intervener did not satisfy the test of being
directly affected by the suit.

5
with the power to order a separate trial if they deem fit in the interest of justice or in
furtherance of speedy trial. Additionally, courts are also vested with the power to pronounce
separate decrees with respect to each plaintiff or defendant. Order 1 Rule 4 of the Code
makes it clear that a joinder does not necessarily have to result in an inseverable decree
against all joint parties. This is because the court still maintains a separate and independent
identity of the parties.22 The prime object behind joining parties is to give them an
opportunity to present their contentions before an order is binding upon them. Multiplicity of
cases is only a subsidiary object and is therefore not an argument sufficient enough to add
parties on that ground alone.23

Misjoinder of parties would mean that either of the two conditions (or both) have not been
satisfied before adding them to the suit.24 Non-joinder would mean the exclusion of parties
who have a legal interest in the suit. 25 The consequences of misjoinder and nonjoinder of
parties differs according to the status of parties under consideration. Unless the parties are
necessary parties, no suit can be defeated on the grounds of misjoinder or non-joinder under
Order 1 Rule 9 of the Code. Furthermore, Section 99 of the Code prohibits the reversal or
remand of an order on the grounds of non-joinder of parties and which do not have any
bearing on the merits of the case, except in cases relating to nonjoinder of necessary parties.
It lays down the rule of substantial compliance but makes an exception with respect to
necessary parties. This section therefore allows a remedy for the violation of nonjoinder
doctrine.

The Supreme Court has been very clear about dismissing suits for nonjoinder of necessary
parties and has called it a “grave error of law”26. Cases that have been decided by Tribunals
and subsequently Orders that have been passed have been annulled. For instance, in the case

22
S Amarjeet Singh Kalra v Pramod Gupta (2003) 3 SCC 272. (in passing)
23
Savita Devi v District Judge, Gorakhpur (1999) 2 SCC 577. The facts of the case are that the appellant had
initiated proceedings against her 4 sons for maintenance and a share from the ancestral property. In furtherance
of this suit, the court passed an injunction order restraining the sons from parting with the property in any
manner. But despite this, one of the sons sold parts of the property to the respondents. The respondents thus
filed an application under Order 1 Rule 10 read with Section 151 of CPC. The Court observed that even though
preventing multiplicity of cases is one of the objects of the joinder of parties, it cannot be the sole reason to
include them.
24
M.P. Jain, The Code of Civil Procedure (4th edn., Lexis Nexis 2016).
25
ibid.
26
J Jose Dhanapaul v S Thomas (1996) 3 SCC 587. In this case, the appointment of the appellant was
cancelled by the Tamil Nadu Administrative Tribunal without making him a party to the proceedings. The 3
judge bench of the Supreme Court prima facie set aside the challenged order and held the dismissal of order to
be illegal.

6
of Arun Tewari & Ors v Zila Mansavi Shikshak Sangh & Ors.27 the court held the impugned
order of the Tribunal to be invalid as the proceedings did not join even some of the affected
parties as representatives.

Generally, the plaintiffs enjoy autonomy to choose the defendant whom they want to initiate
proceedings against. It is called the dominus litus rule.28 But this rule has limitations as well
as exceptions. The limitation to the dominus litus rule is that the plaintiff is not allowed to
implead parties arbitrarily29. He has to establish that they are either necessary or proper
parties. The exception to the dominus litus rule is that the defendant himself can challenge his
involvement or non-involvement in the suit. The Court has the power to alter the party
composition against the will of the plaintiff. But again, the Court also has to prove that the
party is necessary or proper party.30 Thus, the plaintiff's autonomy has not been left entirely
unguided and neither has the defendant’s and court’s.

The scope of nonjoinder of parties is however limited by Order 1 Rule 13 of the Code. It
calls for raising objections on the same ground at the earliest and in case parties fail to
raise it at or before the settlement by the court, the right to object will be deemed to be
waived. Expounding the same rule, the Allahabad High Court in the case of Maqsood Ali
27
AIR 1998 SC 331. The facts of the case are that under the Black Board Scheme the aggrieved were excluded
from qualifying for the post of Assistant Teachers under the said scheme. Even though they were directly
affected parties, they were not made parties before the Tribunal. The court relied on Prabodh Verma & Ors. v
State of Uttar Pradesh & Ors. 1984 [4] SCC 251(in passing) to hold that if the number of necessary parties is
huge, at least few have to be made parties to represent others.
28
The literal translation for this maxim is “master of the suit”.
29
[Link] v Rathinavel Naicker 2007 (2) LW 810. The facts of the case are that the Appellant claimed
possession over a property and in pursuance of that requested the court to pass an injunction order against the
respondent. The respondent therein filed an application to implead Respondents 5-23 because they were the
heirs of the original owner from whom he had gotten the possession of property from. The respondent
contended that since the dispute was over title and both parties were trying to trace their roots to the ancestors of
the Respondents 5-23, they should be impleaded. The Madras High Court rejected this argument as even though
they were important to the case, they didn’t satisfy the proper or necessary party test. They only have a role of
producing evidences which they could do without disturbing the party formation. Thus, the revision by the
lower court was set aside.
30
Mumbai International Airport v Regency Convention Centre (2010) 7 SCC 417. In pursuance of the 2003
Amendment brought about by the Government involving private operators in the process of development and
maintenance of the Airports, the Airport authorities initiated a bidding process to invite operators. After the
completion of the bidding, the task of developing and expanding the Mumbai Airport was given to the
Appellant. In furtherance of this, the Airport Authorities initiated a lease agreement with the Appellant and
specified the areas of the Airport that was allowed to be modified. So, the question before the Court is regarding
one particular area of land that was supposedly a part of the agreement. The suit is about the specific
performance of an agreement between the AAI and Respondent. The Appellant claimed to be a necessary party
to the suit as had interest in the suit of the land. It is in this context that the Court discussed Order 1 Rule 10(2)
of the Code and the limitations to the Court’s discretionary power. Deliberation upon the ambit of the rule, it
held that a court lacks jurisdiction to implead any other party other than necessary or proper parties. 
The court then pronounced the Appellant as not being a necessary nor proper party as the Respondent did not
have any relief against him and even though he would be directly affected by the decree its presence was not
necessary.

7
v Zahid Ali31 observed that where the outcome of nonjoinder of proper parties does not
render the order “in executable or infructuous” a suit should not be dismissed. It is
important to note that this observation was only with respect to proper parties. Exclusion
of necessary parties from a suit is by law i.e. Section 99 of the Code, a sufficient ground
to dismiss a suit. The party invoking this ground need not prove its effect on the merits of
the case as has to be done with proper parties.

Dichotomy between competing rights

Many like to call the nonjoinder or misjoinder of necessary parties a mere technicality.
However, this procedural requirement overlaps with a very important substantive right,
namely the right to fair hearing. On the other hand, if a suit is dismissed after prolonged
proceedings on the grounds of nonjoinder, it yet again violates a substantive right of the
plaintiff i.e. the right to speedy trial. Here, we see a dichotomy between two important
competing rights of the plaintiff and the defendant.

Both rights are equally significant, to say the least. The right to fair hearing is a vital common
law principle from which stems the second principle of natural justice i.e. audi alteram
partem. In the famous case of Maneka Gandhi v Union of India32, the Supreme Court
proclaimed the applicability of this principle in India, tucking it under Article 14 and Article
21. This principle prescribes that a party cannot be adversely affected without it getting an
opportunity to express itself before the competent authority. In short and literally, it means no
party can be condemned unheard. A blatant violation of this principle is not impleading a
party whose legal interest is potentially endangered.

The right to speedy trial is also a key component of administering justice. It has been held to
be a right which is implicit under the Fundamental Right to Life and Liberty 33 in the case of
Hussainara Khatoon v Home Secretary State of Bihar.34 In India, one of the primary reasons
31
AIR 1954 All 385. (in passing)
32
1978 SCR (2) 621. The facts are that the passport of the petitioner was impounded under the Passport Act’
1967 and the reasons for the same was not given to her. The petitioner approached the adequate authorities for
justification but was denied the same. She then approached the Supreme Court for violation of various
Fundamental Rights. For the purpose of the paper, the only important holding of the case was that it recognised
the principle of Audi Altrem Partem and also allowed the remedy for its violation i.e. to approach the Supreme
Court under Article 32.
33
The Indian Constitution 1950, A 21.
34
(1980) (1) sec 98. This case is the touchstone on which judicial developments around the concept of Speedy
Trial has taken place. The facts were that several undertrial prisoners were languishing in jail for periods longer
than what they would have been punished for. It is in this context that the Court brought the right to expeditious
trial under Article 21 of the Constitution. Emphasising further the court said that this right was so fundamental
that it wasn’t excusable on frivolous grounds.

8
for delay in trials is because of the high dismissal or suits on various grounds, one of which is
incorrect institution of parties. It is a problem that is not fully avoidable surely, but it can be
tackled to a great extent. For instance, if a competent court lays down an exhaustive
definition of necessary and proper party in the form of a guideline, much of the confusion
surrounding the issue would be resolved. The guideline can contain the most frequently
raised contentions on who the necessary parties are and the subsequent position of the
judiciary. The parties can only then be expected to have constituted the suit fairly.
Furthermore, a monetary sanction for improper party formation can also be imposed.

Conclusion

“Procedure is the practical way of asserting the primacy of law”35

For achieving civil justice supremacy of procedure has to be practiced. 36 It is important to

acknowledge that procedural law is an indispensable branch of civil law. 37 It prevents the
arbitrary and unfair denial of important constitutionally guaranteed rights. It is in a sense the
keeper of the principles of equity. An example of this is Order 1 of the code. As discussed
earlier, it houses principles of speedy and fair trial, two important aspirations of our justice
system. Hence, it can be concluded that fidelity to law is fidelity to procedure.

Procedural law derives its legitimacy from conferring the right to participation. 38Even when
the decree pronounced may not be close to the truth of the matter, the parties are more likely
to be satisfied from it than with a decree where they were not allowed to present their side of
the story. It may be argued that even so, the parties will be bound by the decree and therefore
their satisfaction bears little to no relevance to the legal regime. However, a legitimate legal
system gives additional reasons for people to obey the law; it appeals to them morally as
well.39

The need of the hour is not to make either of the party compromise on their rights. The
pressing priority is to strike a balance between the two. Setting a specific time under which
defendants can appeal to be added is one way to do so. Another way to reach a win-win
situation is to set a limit on the number of appeals that a party can file on the issue of
misjoinder or nonjoinder. The idea is to find a solution within the existing procedural

35
(n 1) 65.
36
(n 1) 62.
37
(n 1) 60-67.
38
Lawrence B. Solum, ‘Procedural Justice’ (2004) 78 S. Cal. L. Rev. 273-275. (in passing)
39
ibid.

9
framework. The answer to delays and lack of representation is not to ignore or discard the
procedures altogether, it is to improve the manner in which it is administered. Ultimately, the
goal should be to recognise the importance of the procedures and preserve its essence in their
truest sense.

TABLE OF AUTHORITIES

Statutes

1. The Constitution of India’1950.

2. The Civil Procedure Code’1908.
3. The Code of Civil Procedure (Amendment) Act’ 1976

List of Authorities

1. Amon v Raphael Tuck & Sons Ltd (1956) 1 ALL ER 273.

2. Arun Tewari & Ors v Zila Mansavi Shikshak Sangh & Ors. AIR 1998 SC 331.
3. Benares Bank Ltd. v Bhagwandas AIR 1947 All. 18.
4. Bharat Karsondas Thakkar v M/S Kiran Construction Co. & Ors (2008) 13 SCC
658.
5. Deputy Commissioner Hardoi v Rama Krishna Narain AIR (1953) SC 521.
6. Hussainara Khatoon v Home Secretary State of Bihar (1980) (1) sec 98.
7. Ishwar Singh & Ors. v Kuldip Singh & Ors. 1995 (1) SCC 179.
8. J Jose Dhanapaul v S Thomas (1996) 3 SCC 587.
9. Kanakarathanammal v VS Loganatha Mudaliar AIR 1965 SC 271.
10. Kasturi v Iyyamperumal & Ors AIR 2005 SC 2813.
11. Maneka Gandhi v Union of India 1978 SCR (2) 621.
12. Maqsood Ali v Zahid Ali AIR 1954 All 385.
13. Mumbai International Airport v Regency Convention Centre (2010) 7 SCC 417.
14. Prabodh Verma & Ors. v State of Uttar Pradesh & Ors. 1984 [4] SCC 251.
15. Razia Begum v Anwar Begum [1959] SCR 1111.
16. S Amarjeet Singh Kalra v Pramod Gupta (2003) 3 SCC 272
17. [Link] v Rathinavel Naicker 2007 (2) LW 810.
18. Savita Devi v District Judge, Gorakhpur (1999) 2 SCC 577.
19. Thavarayil Salim v Thekkeveettil Karuvantevalappil Saru 2011 (3) KLT 280.

10
11
 BIBLIOGRAPHY

Books/Commentaries

1. C.K. Takwani, Civil Procedure (8th edn., Lexis Nexis 2017).

2. M.P. Jain, The Code of Civil Procedure (4th edn., Lexis Nexis 2016).
3. Mulla, The Code of Civil Procedure (18th edn., Lexis Nexis Vol 2).
4. Sir Jack I.H. Jacob, The Fabric of English Civil Justice (The Hamlyn Lectures Thirty-
Eight Series, 1987).

12