- Case Laws on Non-joinder of a Necessary Party
- 1. Udit Narain Singh Malpaharia v Additional Member Boardof Revenue, Bihar, AIR 1963 SC 786
- 2. Vijay Kumar Kaul v. Union of India (2012) 7 SCC 610
- 3. Indu Shekhar Singh v. State of U.P., (2006) 8 SCC 129
- 4. Public Service Commission v. Mamta Bisht, (2010) 12 SCC 204
- 5. Udit Narain Singh Malpaharia v. Board of Revenue, AIR 1965 SC 786
- 6. Gulabchand Chhotalal Parikh v. State of Gujarat, AIR 1965 SC 1153
- 7. Babubhai Muljibhai Patel v. Nandlal Khodidas Barot, (1974) 2 SCC 706
- 8. Prabodh Verma v. State of U.P., (1984) 4 SCC 251
- 9. Tridip Kumar Dingal v. State of W.B., (2009) 1 SCC 768
- 10. Asstt. G.M State Bank of India v. Radhey Shyam Pandey, 2015 (3) SCALE 39
- 11. Hari Vishnu Kamath v. Ahmad Ishaque, AIR 1955 SC 233
- 12. The General Manager, South Central Railway, Secunderabad v. A.V.R. Siddhantti, (1974) 4 SCC 335
- 13. State of Himachal Pradesh v. Kailash Chand Mahajan, 1992 Supp (2) SCC 251
- 14. A. Janardhana v. Union of India, (1983) 3 SCC 601
- 15. Sadananda Halo and Others v. Momtaz Ali Sheikh and Others, (2008) 4 SCC 619
- 16. All India SC & ST Employees’ Assn. v. A. Arthur Jeen, (2001) 6 SCC 380
- 17. Canara Bank v. Debasis Das, (2003) 4 SCC 557.
- 18. J.S. Yadav v. State of U.P., (2011) 6 SCC 570
- 19. Prabodh Verma v. State of Uttar Pradesh, (1984) 4 SCC 251
- 20. Ishwar Singh v Kuldip Singh, 1995 Supp (1) SCC 179
- 21. State of Assam v. Union of India, (2010) 10 SCC 408
- 22. Public Service Commission, Uttranchal v. Mamta Bisht (2010) 12 SCC 204
- 23. U.P. Awas Evam Vikas Parishad vs. Gyan Devi (Dead) by LRs. (1995) 2 SCC 326
- 24. Delhi Development Authority vs. Bhola Nath Sharma (Dead) by LRs., (2011) 2 SCC 54
- 25. Ram Swarup v. S.N. Maira, (1999) 1 SCC 738
- 26. Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay, (1992) 2 SCC 524
- 27. Razia Begum vs. Anwar Begum, AIR 1958 SC 886
- 28. Poonam v. State of U.P. (2015) 43 SCD 94
# Case Laws on Non-joinder of a Necessary Party
# 1. Udit Narain Singh Malpaharia v Additional Member Boardof Revenue, Bihar, AIR 1963 SC 786
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 this proceeding.
# 2. Vijay Kumar Kaul v. Union of India (2012) 7 SCC 610
Neither before the Tribunal nor before the High Court, they were arrayed as parties. There is no dispute over the factum that they are senior to the appellants and have been conferred the benefit of promotion to the higher posts. In their absence, if any direction is issued for fixation of seniority, that is likely to jeopardise their interest. When they have not been impleaded as parties such a relief is difficult to grant.
# 3. Indu Shekhar Singh v. State of U.P., (2006) 8 SCC 129
The appellants herein were not joined as parties in the writ petition filed by the respondents. In their absence, the High Court could not have determined the question of inter se seniority.
# 4. Public Service Commission v. Mamta Bisht, (2010) 12 SCC 204
The Apex Court deals with the concept of necessary parties and the effect of non-impleadment of such a party in the matter when the selection process is assailed.
# 5. Udit Narain Singh Malpaharia v. Board of Revenue, AIR 1965 SC 786
The Court has explained the distinction between necessary party, proper party and proforma party and further held that if a person who is likely to suffer from the order of the court and has not been impleaded as a party has a right to ignore the said order as it has been passed in violation of the principles of natural justice.
# 6. Gulabchand Chhotalal Parikh v. State of Gujarat, AIR 1965 SC 1153
More so, proviso to Order 1 Rule 9 of the Code of Civil Procedure, 1908 provides that non-joinder of necessary party be fatal.
# 7. Babubhai Muljibhai Patel v. Nandlal Khodidas Barot, (1974) 2 SCC 706
Undoubtedly, provisions of CPC are not applicable in writ jurisdiction by virtue of the provision of Section 141 CPC but the principles enshrined therein are applicable.
# 8. Prabodh Verma v. State of U.P., (1984) 4 SCC 251
If a person challenges the selection process, successful candidates or at least some of them are necessary parties.
# 9. Tridip Kumar Dingal v. State of W.B., (2009) 1 SCC 768
The Tribunal was, therefore, wholly right in holding that in absence of selected and appointed candidates and without affording opportunity of hearing to them, their selection could not be set aside.
# 10. Asstt. G.M State Bank of India v. Radhey Shyam Pandey, 2015 (3) SCALE 39
Whether a tribunal is a necessary party.
# 11. Hari Vishnu Kamath v. Ahmad Ishaque, AIR 1955 SC 233
Concept of a tribunal being a necessary party
# 12. The General Manager, South Central Railway, Secunderabad v. A.V.R. Siddhantti, (1974) 4 SCC 335
Natural justice is not an unruly horse. Its applicability has to be adjudged regard being had to the effect and impact of the order and the person who claims to be affected; and that is where the concept of necessary party become significant.
# 13. State of Himachal Pradesh v. Kailash Chand Mahajan, 1992 Supp (2) SCC 251
Non-impleadment of the necessary party was fatal to the writ petition.
# 14. A. Janardhana v. Union of India, (1983) 3 SCC 601
Ultimately did not accept the submission that the writ petition was not maintainable because of non-impleadment of the necessary party.
# 15. Sadananda Halo and Others v. Momtaz Ali Sheikh and Others, (2008) 4 SCC 619
Apex court had addressed the necessity in joining the necessary candidates as parties.
# 16. All India SC & ST Employees’ Assn. v. A. Arthur Jeen, (2001) 6 SCC 380
The Court referred to the principle of natural justice.
# 17. Canara Bank v. Debasis Das, (2003) 4 SCC 557.
No order should be passed behind the back of a person who is to be adversely affected by the order. The principle behind proviso to Order I Rule 9 that the Code of Civil Procedure enjoins it and the said principle is also applicable to the writs. An unsuccessful candidate challenging the selection as far as the service jurisprudence is concerned is bound to make the selected candidates parties.
# 18. J.S. Yadav v. State of U.P., (2011) 6 SCC 570
No order can be passed behind the back of a person adversely affecting him and such an order if passed, is liable to be ignored being not binding on such a party as the same has been passed in violation of the principles of natural justice. The principles enshrined in the proviso to Order 1 Rule 9 of the Code of Civil Procedure, 1908 provide that impleadment of a necessary party is mandatory and in case of non-joinder of necessary party, the petitioner-plaintiff may not be entitled for the relief sought by him.
The litigant has to ensure that the necessary party is before the court, be it a plaintiff or a defendant, otherwise the proceedings will have to fail. In service jurisprudence if an unsuccessful candidate challenges the selection process, he is bound to implead at least some of the successful candidates in representative capacity.
In case the services of a person are terminated and another person is appointed at his place, in order to get relief, the person appointed at his place is the necessary party for the reason that even if the petitioner-plaintiff succeeds, it may not be possible for the Court to issue direction to accommodate the petitioner without removing the person who filled up the post manned by the petitioner-plaintiff.
More so, the public exchequer cannot be burdened with the liability to pay the salary of two persons against one sanctioned post.
# 19. Prabodh Verma v. State of Uttar Pradesh, (1984) 4 SCC 251
The first defect was that of non-joinder of necessary parties. The only respondents to the Sangh’s petition were the State of Uttar Pradesh and its concerned officers. Those who were vitally concerned, namely, the reserve pool teachers, were not made parties — not even by joining some of them in a representative capacity, considering that their number was too large for all of them to be joined individually as respondents. The matter, therefore, came to be decided in their absence.
A High Court ought not to decide a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents or at least by some of them being before it as respondents in a representative capacity if their number is too large, and, therefore, the Allahabad High Court ought not to have proceeded to hear and dispose of the Sangh’s writ petition without insisting upon the reserve pool teachers being made respondents to that writ petition, or at least some of them being made respondents in a representative capacity, and had the petitioners refused to do so, ought to have dismissed that petition for non-joinder of necessary parties.
# 20. Ishwar Singh v Kuldip Singh, 1995 Supp (1) SCC 179
Even, one of the selected candidates, who was a party, had not been served and as such was not heard by the High Court. The High Court was not justified in hearing the writ petition in the absence of the selected candidates especially when they had already been appointed.
# 21. State of Assam v. Union of India, (2010) 10 SCC 408
The High Court while allowing the appeals filed by the Union of India and shifting the liability of payment of salary/wages to the Voluntary Female Attendants on the State of Assam, should have taken a little more care and caution to find out whether the State of Assam is arrayed as a party to the proceedings and whether they are served with the notice of the appeals and in spite of service, whether they have remained absent.
# 22. Public Service Commission, Uttranchal v. Mamta Bisht (2010) 12 SCC 204
It was held by a two-Judge Bench that the first respondent therein wanted her selection against a reserved category vacancy and, therefore, the last selected candidate in that category was a necessary party and without impleading her the writ petition could not have been entertained by the High Court, for if a person challenges a selection process, successful candidates or at least some of them are to be arrayed as parties they being necessary parties.
# 23. U.P. Awas Evam Vikas Parishad vs. Gyan Devi (Dead) by LRs. (1995) 2 SCC 326
The Constitution Bench has laid down that in a land acquisition proceeding, the local authority is a necessary party in the proceedings before the Reference Court and is entitled to be impleaded as a party in those proceedings wherein it can defend the determination of the amount of compensation by the Collector and oppose enhancement of the said amount and also adduce evidence in that regard.
That apart, it has also been stated that in the event of enhancement of the amount of compensation by the Reference Court, if the Government does not file an appeal, the local authority can file an appeal against the award in the High Court after obtaining leave of the Court.
That apart, the Court also opined that in an appeal by the person having an interest in the land seeking enhancement of the amount of compensation awarded by the Reference Court, the local authorities should be impleaded as a party and is entitled to be served notice of the said appeal and that could apply to appeal in the High Court as well as in the Supreme Court.
# 24. Delhi Development Authority vs. Bhola Nath Sharma (Dead) by LRs., (2011) 2 SCC 54
The question arose whether the Delhi Development Authority, at whose instance land of the respondent and others had been acquired, could be treated as a ‘person interested’ within the meaning of Section 3(b) of the Land Acquisition Act, 1894 and it was entitled to an opportunity to participate in the proceedings held before the Land Acquisition Collector and the Reference Court for determining the compensation. The two-Judge Bench eventually allowed the appeal and set aside the impugned judgment of the High Court as well as that of the Reference Court and remitted the matter to the Reference Court to decide the reference afresh after giving opportunity of hearing to the parties which shall necessarily include opportunity to adduce evidence for the purpose of determining the amount of compensation.
# 25. Ram Swarup v. S.N. Maira, (1999) 1 SCC 738
Where the land after having vested under any statute in the State have been distributed and possession handed overto different landless persons. It is because of such allotment and delivery of possession in their favour, that is required under the statute rights are created in favour of such allottees and, therefore, they are necessary parties.
# 26. Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay, (1992) 2 SCC 524
The subject matter in the case pertained to a dispute between the petitioner and the respondent no.1 which centered on the demolition and unauthorized construction by the competent authority under the Bombay Municipal Act. The respondent no.2 was the lessee in possession of the service station. The Municipal Corporation had not issued any notice to the said respondent. It was contended before the Court that the respondent no.2 was instrumental in the initiation of the proceeding by the Municipal Corporation against him. The court addressed to the issue whether the said respondent is a necessary or proper party.
# 27. Razia Begum vs. Anwar Begum, AIR 1958 SC 886
There is a clear distinction between the suits relating to property and those suits in which the subject matter of litigation is a declaration as regards status or legal character. The Court observed that in the former category, the rule of personal interest is distinguished from the commercial interest which is required to be shown before a person may be added as a party.
# 28. Poonam v. State of U.P. (2015) 43 SCD 94
The Court referred all the above decision in extenso as there is emphasis on curtailment of legal right. The question to be posed is whether there is curtailment or extinction of a legal right of the appellant. The writ petitioner before the High Court was trying to establish her right in an independent manner, that is, she has an independent legal right. It is extremely difficult to hold that she has an independent legal right. It was the first allottee who could have continued in law, if his licence would not have been cancelled. He was entitled in law to prosecute his cause of action and restore his legal right. Restoration of the legal right is pivotal and the prime mover. The eclipse being over, he has to come back to the same position. His right gets revived and that revival of the right cannot be dented by the third party.