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10/15/18

Necessary and Proper Parties under CPC and their differences

Necessary and Proper Parties under CPC 

Hey guys, today, we will discuss the topic- Difference between the necessary party and proper party, what are they,  which one is necessary for the suit, etc.  with the case laws. Let's start.


Introduction:-
            Under Order 1 of CPC, provisions regarding the necessary and proper parties are provided Order 1 provide provisions about the party to the suit. In this Order provisions are provided regarding the joining of the parties as a plaintiff and defendants, representative suit, non-joinder, and misjoinder, suit in name of the wrong plaintiff, the appearance of one of several plaintiffs or defendant for others, objection as to non- joinder or misjoinder, etc.
Necessary and proper party are the part of this order. It also provides the provisions regarding the necessary and proper parties. There are some distinctions between the necessary party and proper party, which are discussed in this blog.
Distinction between necessary and proper party:-
There are some distinctions between the necessary party and proper party, which are as follows:-
1.    Necessary party is one whose presence is indispensable to the constitution of the suit, whereas, in case of a proper party, it is not so.
2.   A necessary party is without whom no effective order can be passed, whereas, A proper party is one, in whose absence an effective order can be passed.
       However, like Necessary party, the presence of a proper party is also necessary for complete and final decisions on the question involved in the preceding. His presence, however, enables the Court to adjudicate more "effectively and completely".
                   In case of Kasturi versus Iyyamperumal, AIR 2005 SC 2813 the two test have been provided for determining the question whether a particular party is a necessary party to the proceeding OR not:-
1. There must be right to some relief against such party in respect of the matter involved in the proceeding in question; and
2. It should not be possible to pass an effective degree in the absence of such a party.
There are some example of the necessary party and proper party:-
Necessary parties:-
  • In a suit for partition, all sharers are necessary party,
  • In a suit for the declaration to set aside public auction, purchase of property in a public auction is a necessary party,
  • In an action against selection and appointment by an authority, candidates who are selected and appointed are directly affected and, therefore, they are necessary parties.
Proper parties:-
  • In a suit for possession, by a landlord against his tenant, a sub-tenant is only a proper party,
  • In a suit for partition, by a son against their father, grandsons are proper parties to the suit,
  • In a land acquisition proceedings, the local authority for whose benefit land in sought to be acquired by the Government is a proper party.
It may, however, be noted that where several persons are involved in a suit, it is not always necessary that all of them should be joined as a plaintiff or as a defendant. Rule 8 of order 1 applies to such suits and it is sufficient if some of them are joined as defendants or plaintiffs, as the case may be.
Conclusion
At last, we can say that, for determining a party, whether, it is a necessary or proper party to the suit, then, first of all, we should see that whose presence is indispensable for the constitution of the suit or whose is not, second, we can say that without whom can, an effective order, be passed or not, it is a test for determining a party whether it is a necessary or proper party. There is also a common point for these two parties, that is, the presence of both the party is necessary for complete and final decision on the questions involved in the proceedings, it was held in Vidur Impex and Traders(P) Limited versus Tosh Apartments (P) Limited, (2012) 8 SCC 384,

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