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Necessary and Proper Party to a litigation explained

In Mohammad Yaseen Shah Vs. Ghulam Nabi Rather, an appeal was filed before the Jammu & Kashmir High Court against the decision of the trial court to allow an application filed by the Respondent No. 5 to be included as a necessary party to the litigation.

The High Court declared that the Trial Court had been correct as it had found that in the original dispute for ownership of a piece of land, both the litigants had claimed their title through the Respondent No. 5.

The High Court explained that the object of adding the parties under the provisions Order I Rule 10 of the Code is to avoid the multiplicity of the suits and the rule authorises and empowers the Court to add a party even for the purpose of the final determination of the questions involved in the suit as between a party on the record and the party sought to be added. The general rule in regard to the impleadment of the parties is that the plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. But this general rule is subject to the provisions of Order I Rule 10(2) of the Code, which provides for impleadment of proper or 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. 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 upon all matters in disputes in the suit, though he need not be a person in favour of or against whom the decree is to be made. 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 fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance

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