Q. What do you understand by ‘necessary party’ and ‘proper party’. Whether a suit shall be defeated by the reason of mis-joinder or non-joinder of parties ? [MPCJ 2011]
Ans. Necessary & Proper party:- A necessary party is a party whose presence for the suit is absolutely essential and in whose absence an effective decree cannot be passed. On the other hand, a proper party is one whose presence in the suit is not inevitable but whose presence is required to enable the court to decide the suit comprehensively.
Under order 1 rule 10 (2) of the CPC, an addition of the two types of the person in the suit is contemplated. Firstly, on the ground \’who ought to have been joined\’, that is necessary party. Secondly, whose presence enables the court to effectively and completely adjudicate and settle all the question involved in the suit, it corresponds to proper party.
Consequence of the Mis-joinder and Non- joinder of the parties:-
Order 9- rule 9 of the CPC clearly states that a suit cannot be defeated on the ground of the mis-joinder and non- joinder of the parties. Such defect can be even waived off, if an objection regarding that is not taken at the earliest stage by the opposite party. In case a party takes such an objection then the remedy lies under order 1 rule 10 of the CPC. The Hon\’ble Apex court has also held in Prem Lala Nahata & Another vs. Chandi Prasad Sikaria AIR 2007 SC 1247 that mis-joinder or non- joinder of the party cannot lead to the dismissal of the suit.
However, there is an exception to the aforesaid principle with respect to non- joinder of the necessary party as stated in the proviso to the order 9-rule 9 of the CPC. It has also been held by the Hon\’ble Apex court in Mumbai International Airport (P) Ltd. v. Regency Convention Centre & Hotels (P) Ltd., (2010) 7 SCC 417 that a suit may be dismissed on the ground of the non- joinder of the necessary party.