Partition suit
jeetendra patel
(Querist) 03 January 2012
This query is : Resolved
Dear colleague wish you all a a happy new year.I am representing defendants in a partition suit.I have following query.
What are the consequences if all the legal heirs are not made party to the suit by the plaintiff?
Please cite any latest judgement on the above point.
can suit be dismissed for want of nonjoinder of necessary parties?
Please enlighten me on above points. Regards.
Devajyoti Barman
(Expert) 03 January 2012
Yes if the left out party is also the co-sharer of the suit property then the suit would fail because of non-joinder of necessary party.
You better file an application under order 1 rule 10 cpc.
Deepak Nair
(Expert) 03 January 2012
Rightly advised by Mr.Barman.
Raj Kumar Makkad
(Expert) 04 January 2012
The Code of Civil Procedure, the procedural law relating to civil suits can be classified into two parts, "Body of the Code" and "Rules". The latter deals with non-joinder of parties. Order 1, Rule 9 lays down the procedure to be followed in cases of non-joinder of parties. This shall be discussed in greater detail in the course of this article.
‘Non-joinder’ can be defined as an omission to join some person as a party to a suit, whether as plaintiff or as defendant, who ought to have been joined according to the law. In other words, non-joinder means an omission to join a party to the suit. The Code does not define non-joinder, but lays down "No suit shall be defeated by reason of … non-joinder of parties, and 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 proviso to this Rule however excludes its applicability to cases of non-joinder of necessary parties. ‘Necessary Parties’ are those parties in the absence of whom no effective decree can be passed by the court. For instance, in a suit filed against a partnership firm, all partners would be necessary parties. As against this, non-necessary parties are those parties in the absence of whom the court can still adjudicate in an effective manner.
If a suit is dismissed straightaway for a non-joinder of necessary parties, the plaintiff will have to file the suit again, resulting in multiplicity of litigation. The Code, through various legal provisions seeks to prevent multiplicity of litigation. For this reason, the court may add the necessary parties on its own, or may even direct the plaintiff to do so. However, since adding necessary parties to the suit is procedural in nature, the same has to be done at the time of trial, but without prejudice to the plea of limitation of the parties involved.
In this article, the researcher shall first begin with the meaning of joinder of parties to a suit. Thereafter, he shall address the question of who are the necessary parties to a suit. Finally, the legal consequences of non-joinder of necessary parties shall be analyzed with reference to case laws, so as to appreciate the judicial interpretation of the relevant legal provisions.
jeetendra patel
(Querist) 05 January 2012
pl. cite any latest case law on this point
M/s. Y-not legal services
(Expert) 06 January 2012
dear jeetendra, you can collect citation by go through the Order 1, Rule 9 and 10. example case laws will be displayed in the bottom of the notes.,
-tom-
