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Sumit (SA)     09 December 2011

Order 1 rule 10

A plaintiff during an appeal asks for impleading a necessary party under order 1 rule 10. During trial the defendant in his written statement had raised objection that necessary party was not impleaded. All along the trial the plaintiff did not prefer for impleading the necessary party. Now the case is dismissed and the plaintiff has preferred an appeal for remand, and one of the grounds for the appeal is that the case was dismissed due to non-joinder of parties.

Can the plaintiff come to appeal on grounds that case was dismissed due to non-joinder of parties and also ask for impeading of that very party as a necessary party under order 1 rule 10?


Sumit



 16 Replies

ajay sethi (lawyer)     09 December 2011

when objection was raised by defendant in his written staement plaintiff ought to have taken out chamber summons fro adding formal proper and necessary parties . the fact that plaintiff failed to dos so left court with no other option but to  dismiss  the  case .

2 Like

sridhar pasumarthy (ADVOCATE)     09 December 2011

Dear Sumit,

No chance of filling up lacuna in the appeal.  When suit was dismissed for non-joinder of necessary party, the plaintiff/appellant is not entitled to seek for impleadment of the said party in the appellate court.

1 Like

Sumit (SA)     10 December 2011

Thanks Mr. Sethi/Mr. Sridhar,

We are the defendants, our written statement had raised the objection at the first chance. When the plaintiff filed for appeal, he did so on the grounds that "no suit may be dismissed on grounds non-joinder or mis-joinder".

Now, strangely during appeal pending the plaintiff using order 1 rule 10 want's to implead the necessary party so that the suit is sent for remand. How can the plaintiff do a u-turn on his appeal and ask for impleading?


Sumit

1 Like

Shantilal Pandya ( Advocate)     30 January 2012

No suit may be dismissed on grounds non-joinder or mis-joinder of parties  is  good for proper parties only  and   not for   necessary parties ,  cpc  was  amended  to  differtiate the  class of  parties , if the plaintiff ignored to join the  necessary parties in the  trial court despite objections , he   will not  be allowed to  do  so in  appeal , more over  there may  be  questions   about  running  of  time  against  the  proposed  party , since  the  suit   can be  said  to  have been  instituted  against  the  new  party only  on the  date  when  such  pary is  served  with  the  summons  of   appearance in the  suit ,

 

R.Ranganathan (Director)     04 February 2012

No new parties can be impleaded in the Appeal for the simple reason that appeal is filed only between the existing parties. When a person is not a party in the Original suit then he cannot be made a party in the appeal since there has been no prayer against him. So the impleading petition will not lie in the appeal.   

1 Like

Shantilal Pandya ( Advocate)     04 February 2012

it is not necessary that any prayer  must have been  asked fore in tghe  suit  against  a  necessary  party ,, the  rule  is  based on the principle of  avoiding   conflicting  judgement being passed  in case  the  proposed party  files  a  saperate  suit  since tghe former decree if any  would not  be bindibg  to  him  and  because  no  deree can be executed   against  a party  who was not joined  as  a  necessary  party in the  suit 

Shantilal Pandya ( Advocate)     04 February 2012

this is so  because all questions  involved  in the  suit are required to be tried  by    single  judgement 

Sumit (SA)     04 February 2012

Thank you Sirs, i value all your opinions very much. I may be allowed to provide a little bit more details. In this very case, we the defendants in our written statement had mentioned that the necessary party was not impleaded. During the trial, when isues were fixed - the court had considered "defect of parties" as one of the issues. The lower court decree had also described in it's judgment the matter of mis-joinder. The suit was dismissed and in the judgment the misjoinder was considered to be "one"(not the only) of the issues due to which the dismissal happened.

Now, in the appeal the plaintiff raises the "dismissal of suit due to misjoinder" as a cause. Since, the plainitff during trial did not implead the "necessary party" even after defendant's objection and issue framing. Can it be considered admitted by the plaintiff that it's petition under order 1 rule 10 read with cpc 151 is for impleading a "PROPER PARTY"?? - if so, then what?


Sumit

Shantilal Pandya ( Advocate)     10 February 2012

 joining  of parties  is  not  in  all   cases  a mere procedural  reqirement ,  it has    a  substantive  significance  the  court  even  soumoto  cannot  add  a necessary  party  after  limitation is all ready exhausted .

sridhar pasumarthy (ADVOCATE)     10 February 2012

@Shantilal Pandya,

Sir, could you please provide any citation that court can suo motu add necessary party after limitation is exhausted.

Shantilal Pandya ( Advocate)     22 February 2012

 Mr,. Sridharji , yes , only in exceptional  circumstances   court can  do it.  please wait for my  next  turn 

Shantilal Pandya ( Advocate)     22 February 2012

But I have  very  clearly opined previously that the  court   cannot  do that 

Sumit (SA)     22 February 2012

Is it important that there always has to be a relief sought against a party in order to consider him a "necessary party"? Also, it is not clear to me what "limitation" is being referred to - anything in the statute? We are one of the defendants in a suit for declaration and permanent injunction.


Sumit

Shantilal Pandya ( Advocate)     26 February 2012

 IT is  limitation provided for  filing  suit . the  suit is said to have been  commenced on the  date  when  newly added party receives  summonce for  appearanc in the  suit , which  date  may be  long  after  cause of  actin arose   but by the time  the limitatin   may have been  exhausted  when the  new party  is  added  please  read  the  statutary provision itselg  .look at  order  1 rule 10  of  CPC minutely 


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