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. If a “necessary party” is not impleaded, the suit itself is liable to be dismissed. 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. However, if a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him against the wishes of the plaintiff, the ‘dominus litis’.
Relying on Kasturi vs. Iyyamperumal, 2005 (6) SCC 733, Sumtibai vs. Paras Finance Co., 2007 (10) SCC 82, Ramesh Hirachand Kundanmal vs. Municipal Corpn. of Greater Bombay, 1992 (2) SCC 524, Anil Kumar Singh vs. Shivnath Mishra, 1995 (3) SCC 147, the Hon’ble Apex Court held in the decision reported in 2010 (7) SCC 417 (cited supra), that Rule 10 (2) CPC is not about the right of a non-party to be impleaded as a party, but about the judicial discretion of the court to strike out or add parties at any stage of a proceeding. In exercising its judicial discretion under the said rule, the court will of course act according to reason and fair play and not according to whims and caprice.
It is a well settled proposition of law that the Court has the discretion either to allow or reject an application of a person claiming to be a proper party, depending upon the facts and circumstances and no person has a right to insist that he should be impleaded as a party, merely because he is a proper party.
In Ramesh Hirachand Kundanmal vs. Municipal Corpn. of Greater Bombay reported in 1992 (2) SCC 524 and Anil Kumar Singh vs. Shivnath Mishra reported in 1995 (3) SCC 147, the Hon’ble Apex Court has explained that in all the circumstances, persons may be added as parties, if they are necessary or proper parties for the adjudication of the dispute.
In Mumbai International Airport (P) Ltd., vs. Regency Convention Centre and Hotels (P) Ltd., reported in 2010 (7) SCC 417, the Hon’ble Supreme Court has found thus :
“22. Let us consider the scope and ambit of Order 1 Rule 10 (2) CPC regarding striking out or adding parties. The said sub-rule is not about the right of a non-party to be impleaded as a party, but about the judicial discretion of the court to strike out or add parties at any stage of a proceeding. The discretion under the sub-rule can be exercised either suo motu or on the application of the plaintiff or the defendant, or on an application of a person who is not a party to the suit. The court can strike out any party who is improperly joined. The court can add anyone as a plaintiff or as a defendant if it finds that he is a necessary party or proper party. Such deletion or addition ca be without any conditions or subject to such terms as the court deems fit to impose. In exercising its judicial discretion under Order 1 Rule 10 (2) of the Code, the court will of course act according to reason and fair play and not according to whims and caprice.”
As held in Ramji Dayawala and Sons (P) Ltd., vs. Invest Import, reported in 1981 (1) SCC 80, reiterating the view of Lords Mansfield in R vs. Wilkes, 98 ER 327, the term “discretion” is defined as follows :
“when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague and fanciful; but legal and regular.”
If a plaintiff makes an application for impleading a person as a defendant, on the ground that he is a necessary party, the Court may implead him, having regard to the provisions of Rules 9 and 10 (2) of Order 1 CPC. If the claim against such a person is barred by limitation, it may refuse to add him as a party and even dismiss the suit for non-joinder of a necessary party.
In the light of various decisions rendered by the Hon’ble Supreme Court, it is clear that in general, when the plaintiff is a suit, being “dominus litis”, may choose the persons against whom he wishes to litigate and he cannot be compelled to sue a person against whom he does not seek any relief, however, the general rule is subject to the provisions of Order 1 Rule 10 (2) CPC, which provides for impleadment of proper or necessary parties.