Tag Archives: adjudication

Impleadment of necessary party – Principles of

Order I Rule 10 of the CPC reads as under:

10. Suit in name of wrong plaintiff.— (1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.

(2) 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, be added.

(3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.

(4) Where defendant added, plaint to be amended.—Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant.

(5) Subject to the provisions of the Indian Limitation Act, 1877 (15 of 1877), Section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons.

Necessary Party and Proper Party

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. The addition of parties is generally not a question of initial jurisdiction of the court but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case.

A necessary party is a person who ought to have joined as a party and in whose absence no effective decree could be passed at all by the court. If a necessary party is not impleaded, the suit itself is liable to be dismissed. A proper party is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in dispute in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the plaintiff.

Principles governing disposal of an application for impleadment:

The broad principles are:

  1. The court can, at any stage of the proceedings, either on an application made by the parties or otherwise, direct impleadment of any person as party, who ought to have joined as plaintiff or defendant or whose presence before the court is necessary for effective and complete adjudication of the issues involved in the suit.
  2. A necessary party is the person who ought to be joined as party to the suit and in whose absence an effective decree cannot be passed by the court.
  3. A proper party is a person whose presence would enable the court to completely, effectively and properly adjudicate upon all matters and issues, though he may not be a person in favour of or against whom a decree is to be made.
  4. If a person is not found to be a proper or necessary party, the does not have the jurisdiction to order his impleadment against the wishes of the plaintiff.
  5. In a suit for specific performance, the court can order impleadment of a purchaser whose conduct is above board and who files application for being joined as party within time of his acquiring knowledge about the pending litigation. Vidur Impex and Traders Pvt. Ltd. V. Tosh Apartments Pvt. Ltd., (2012) 8 SCC 384.
Advertisements

2 Comments

Filed under Civil Law, Impleadment of parties

Amendment of Pleadings – Factors to be considered (Order VI Rule 17 – CPC)

In Revajeetu Builders & Developers v. Narayanaswamy & Sons, (2009) 10 SCC 84, the scope of amendment of pleadings was considered and it was held thus:

“On critically analyzing both the English and Indian Cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment:

(1)    Whether the amendment sought is imperative for proper and effective adjudication of the case;

(2)    Whether the application for amendment is bona fide or mala fide;

(3)    The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

(4)    Refusing amendment would in fact lead to injustice or lead to multiple litigation;

(5)    Whether the proposed amendment Constitutionally or fundamentally changes the nature and character of the case; and

(6)    As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.

These are some of the important factors which may be kept in mind while dealing with the application filed under Order 6 Rule 17. These are only illustrative and not exhaustive.”

In a recent Judgment of the Hon’ble Supreme Court – Rameshkumar Agarwal v. Rjamala Exports Private Limited and Others, (2012) 5 SCC 337, it was held thus:

“It is clear that while deciding the application for amendment ordinarily the Court must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide and dishonest amendments. The purpose and object or Order 6 Rule 17 of the Code is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. Amendment cannot be claimed as a matter of right and under all circumstances, but the courts while deciding such prayers should not adopt a hypertechnical approach. Liberal approach should be the general rule, particularly in cases where the other side can be compensated with costs. Normally amendments are allowed in the pleadings to avoid multiplicity of litigations.

Leave a comment

Filed under Civil Law