S.99 CPC | Non-Joinder Of 'Necessary Party' Is Ground To Reverse Or Substantially Vary A Decree In Appeal Or Remand The Suit: Calcutta High Court

The rationale guiding the decision of the Court was that the plain statutory language of Section 99 of CPC barred the reversal, substantial varying or remanding of a decree in appeal on account of any misjoinder or non-joinder of the 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, however subject to the proviso that the said provision would not apply to non-joinder of necessary parties.

The Court accordingly deduced that since such general rule was not statutorily contemplated to apply to suit proceedings concerning non-joinder of a necessary party, such non-joinder by itself would be a ground to reverse or substantially vary or remand a decree in appeal.

The Court further observed that the statutory scheme of Order I Rules 9 and 13 read with Section 99 contemplate the non-joinder of necessary parties to be a ground for dismissal of suit and therefore stood on a different footing than the non-joinder of parties.

The instant proceedings arise out of an appeal preferred against an order of a lower dismissing a suit which was filed for recovery of khas possession after eviction of trespassers as well as for mandatory injunction. Defendants specifically contended that the suit was barred on account of mis-joinder of cause of action and also by the provisions of Order 1 Rule 8 CPC since all trespassers, members of the All India Trinamool Congress ('AITC"), Sahapur East Branch, had not been made parties to the said suit proceedings.

The instant appeal was preferred by the plaintiff to the suit contending that the lower court had dismissed the suit on the basis that the suit was bad for non-joinder of necessary parties without framing any issue in that respect and that the lower court had arrived at an erroneous conclusion that AITC, Sahapur East was a necessary party. Counsels for the plaintiff/appellant contended that such a conclusion arrived upon by the lower court was erroneous as the AITC is not a legal entity and by failing to appreciate that the the trespassing respondents being members thereof are necessary parties.

Plaintiff further submitted that while the respondents/defendants, while forcibly taking possession of the suit property had taken the name of one political party, however at the time of argument, the respondents took the plea that AITC, Sahapur was in possession of the suit property. Plaintiff assailed the lower court order by submitting that as there was a doubt against whom, he would get relief,, the defendants were made parties and the lower court ought have given opportunity to add AITC, Sahapur as a necessary party to the said suit. Counsels for the plaintiff further prayed for a remand of the suit for deciding the issues afresh and in support of its contentions, placed reliance upon the decision of the Supreme Court in Pratima Sinhas v. Shashi Kumar Narain Sinhas, reported in (2004) 13 SCC 599.

Counsels for the respondents argued that the plaintiff with a mala fide intention had made the defendants as parties to the suit in spite of having knowledge that it was the AITC Sahapur Unit which was is in possession of the suit property and that as the lower court had dismissed the suit by a reasoned order, the Court had no scope to interfere with the same. In support of its arguments, the respondents placed reliance upon the decision of the Supreme Court in Moreshar Yadaorao Mahajan v. Vyankateshj Sitaram Bhedi (D) Through LRS. & Ors.

After hearing the rival contentions of parties, the Division Bench of Justices Tapabrata Chakraborty and Partha Sarathi Chatterjee stressed on the necessity of framing of issues by the trial court as being an important stage which determines the scope of the trial and defined "issues" as those facts which have been alleged by one party and either denied or not admitted by the other party. The Court ruled:

"Admittedly, no issue had been framed as to whether suit was bad for non-joinder of necessary party but the learned Court below had dismissed the suit on such issue. Framing of issues is an important stage at which the scope of the trial is determined. Basically, the correct decision of civil lis largely depends on correct framing of issues, correctly determining the real points in controversy which need to be decided. 'Issue' means a point in question at the conclusion of the pleading between contending parties in an action and issues are to be framed in respect only of those facts which have been alleged by one party and either denied or not admitted by the other party and duty of framing issues primarily rests on the Court but such duty can be shared with the pleaders.

On the non-joinder of necessary party as a ground to reverse or substantially vary a decree or remand a suit after setting aside the decree, the Court held:

"Order I of CPC deals with the subject namely, 'Parties to Suits'. Rules 3, 9 and 13 of Order I are the relevant provisions which should be taken into consideration besides Section 99 of the Code. Rule 3 lays down as to who are to be joined as defendants. Rule 9 states that no suit shall be defeated by reason of the misjoinder or non-joinder of parties. Rule 9 speaks further that the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. The general rule of procedure in rule 9 is subject to the proviso thereto which speaks that such general rule shall not apply to non-joinder of a necessary party. So it is obvious that non-joinder of a necessary party stands on a different footing and is a ground to dismiss a suit. Rule 13 mandates to take all objections on the ground of non-joinder or misjoinder of parties at the earliest opportunity and, in all cases where issues are settled, at or before such settlement, unless the ground of objection has subsequently arisen and any such objection not so taken shall be deemed to have been waived. Admittedly, Rule 13 is applicable only to cases of mere non-joinder or misjoinder of parties. It has no manner of application to a case of non-joinder of a necessary party. Section 99 of CPC provides that 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 the 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 but such general rule is also subject to the proviso which provides that nothing in this section shall apply to non-joinder of a necessary party. So, it can be deduced that non-joinder of a necessary party by itself is a ground to reverse or substantially vary a decree in appeal. It by itself is a ground to remand a suit, after setting aside the decree, in an appropriate case."

As regards the question of determining whether a person is a necessary party or not, the Court held that such determination is a question of fact which is contingent upon the relief claimed in the suit. However, once it was established that such person is a necessary party to the suit proceedings, the question then becomes one of law which can be raised for the first time in appeal.

It was also clarified by the Court that as the lower court had affirmed the right, title and interest of the plaintiff in the suit property but had peculiarly dismissed the suit for non-joinder of necessary party, the proper course was remanding the suit back to the lower court in terms of Order XLI Rule 23 CPC, as opposed to a direction for de-novo trial under Order XLI Rule 23A.

The Court, taking note of the fact that no issue in respect of whether the suit was bad for non-joinder of necessary party was framed, gave opportunity to the plaintiff appellant to implead AITC, Sahapur as a necessary party and remanded the suit to the lower court to avoid multiplicity of proceedings. After the impleadment of AITC, Sahapur as a necessary party, the Court framed issues as to the juristic nature and trespassing liability of AITC, Sahapur, among others, for determination by the lower court. The appeal was accordingly disposed of by setting aside the judgment and decree of the lower court.

Case: Kalyan Kumar Bera v. Milan Kumar Khutia & Ors., FAT 451 of 2016

Date: 06.12.2022

Citation: 2022 LiveLaw (Cal) 357