RESPONDENTS- NECESSARY PARTY

ISSUE - WHETHER OR NOT A SUIT IS LIABLE TO BE DISMISSED ON THE

GROUNDS OF MIS-JOINDER OR NON-JOINDER OF NECESSARY PARTIES ?

It is submitted before this hon’ble court that a suit cannot be dismissed on the ground of mis
joinder or non joinder of necessary parties.

A "necessary party" is a person who ought to have been joined as a party and in whose absence
no effective decree could be passed at all by the court.

A "proper party" is a party who, though not a necessary party, is a person whose presence would
enable the court to completely, effectively and adequately adjudicate the matter, in favour of or
against whom the decree is to be made.

In Benares Bank Ltd. V. Bhagwan das 1, the full bench of the High Court of Allahbad laid down
two tests for determining the questions whether a particular party is necessary party to the
proceedings:

In order that a person may be considered a necessary party, defendant to the suit, the conditions
precedent must be:-

(1) that there must be a right to some relief against him in respect of the dispute involved in the
suit; and

(2) that his presence should be necessary to enable the court to effectually and completely to
adjudicate upon and settle and all the questions involved in the suit.

The above tests were described as true tests by Supreme Court in Deputy Commr., Hardoi V.
Rama Krishna2

In the present case the original plaintiff, one Wonder Holidays Pvt. Ltd. has sued Mr Neil Jacobs
( original defendant no 3) for infringement of trademarks of plaintiff and for passing off their
services as those of the plaintaiff’s. Mr. Neil Jacobs is the director of Wonder Holidays Canada
and was joined as a defendant in the original plaint on the basis that the application for website
registration for “wonderholidays.com.ca” and “planjourney.com” was made by him. It is

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contended that the appellant acted in a representative capacity as under Order 1 Rule 8 of the
Civil Procedure Code , 1908 and is a necessary party , however the Wonder Holidays Canada is
not because an effective decree can be passed by the court in the interest of justice.

8. One person may sue or defend on behalf of all in same interest

(1) Where there are numerous persons having the same interest in one suit,--

(a) one or more of such persons may, with the permission of the Court, sue or be
sued, or may defend such suit, on behalf of, or for the benefit of, all persons so
interested;

(b) the Court may direct that one or more of such persons may sue or be sued, or
may defend such suit,on behalf of, or for the benefit of, all persons so interested. 3

The observation of the Privy Council in the case of Kumaravelu Chettiar v. Ramaswami Ayyar
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65 M.L.J. 87 is as follows:

...It is an enabling rule of convenience prescribing the conditions upon which such persons when
not made parties to a suit may still be bound by the proceedings therein. For the section to apply
the absent persons must be numerous; they must have the same interest in the suit which, so far
as it is representative, must be brought or prosecuted with the permission of the Court. On such
permission being given it becomes the imperative duty of the Court to direct notice to be given to
the absent parties in such of the ways prescribed as the Court in each case may require; while
liberty is reserved to any represented person to apply to be made a party to the suit.

Applying the provision of Order 1 Rule 8 , Mr Neil Jacob is made a defendant in the present case
keeping in mind that he is the director of the Wonder Holidays Canada and the act of website
registration was done by him in a representative capacity , acting on behalf of the Company .

It is submitted that the question of non joinder arises when a person, who should have been made
a party to a legal proceedings, has been forgotten or omitted. However , in the present case , all
the parties necessary for the effective disposal of suit are joined as defendants . Furthermore, it is
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contented that no separate rights or cause of action arises in the present case, even if Wonder
Holidays Canada is made a party.

It is the appellants contention that the Wonder Holidays Canada is not made a defendant in the
present suit and it is bad in law. Order 1 Rule 3 of the Civil Procedure Code provides as to who
all can be made defendants in a suit.

3. Who may be joined as defendants

All persons may be joined in one suit as defendants where--

(a) any right to relief in respect of, or arising out of, the same act or transaction or
series of acts or transactions is alleged to exist against such persons, whether
jointly, severally or in the alternative; and

(b) if separate suits were brought against such persons, any common question of
law or fact would arise.

It is most humbly submitted before this hon’ble Court that Order 1 Rule 9 deals with the
provision of misjoinder and non-joinder .

9. Misjoinder and non-joinder

No suit shall be defeated by reason of the misjoindcr or 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:

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[Provided that nothing in this rule shall apply to non-joinder of a necessary
party.]5

It is contended that all the necessary parties have already been made defendants in the present
case and the issue of the appellants is without any merits.

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Assuming arguendo, even if there is a case of non joinder of parties , it is submitted that the
parties are not necessary parties and according to Order 1 Rule 9 no suit can be declared as bad
in law by the reason of non –joinder of parties.

As per Rule 13 of Order 1 of the Code of Civil Procedure 6, all objections on the ground of non-
joinder or mis-joinder of parties shall be taken at the earliest possible 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.

In the present case , the Trial Court has granted an Ex parte stay against defendants and objection
raised by the appellants cannot be taken into consideration because the same has not been done at
the earliest possible opportunity and thus such delay denies the appellant a claim for non joinder
of parties.