In the Hon’ble City Civil Court at Dehradun, Uttarakhand

Suit No. 234/2019

Project Topic Assigned: Non-Joinder of Parties

In the matter of:

Vijay Verma...………………………………………………………………Plaintiff/Applicant

Versus

M/S. Sanjay Sharma & Sons……………..…………………………Defendant/Non-Applicant

(APPLICATION UNDER SECTION 151 OF THE CIVIL PROCEDURE CODE, 1908

PRAYING FOR THE ALLOWING OF THE PLAINT DUE TO THE
APPLICABILITY ORDER I RULE 9 OF THE CODE)

PROJECT for ‘CIVIL PROCEDURE CODE & LIMITATION ACT I’

Submitted by:

Tanmay Diwan

Counsel for the Plaintiffs/ Applicants

PRN: 16010223005

Programme: B.A. LL.B; Group: A

Semester/Year: VII/ 4th Year

Batch: 2016-21

Under the guidance of:

Ms. Megha Nagpal

Assistant Professor

Symbiosis Law School, NOIDA

Symbiosis International (Deemed University) Pune

(July- August, 2019)

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Table of Contents

DECLARATION FOR PROJECT ...................................................... 3

HYPOTHETICAL SITUATION ........................................................ 4

DEBATABLE QUESTION ................................................................ 4

RULE APPLICABLE ......................................................................... 4

IRAC OF THE RELEVANT CASE LAWS: ...................................... 4

Deputy Commissioner, Hardoi v. Rama Krishna Narain & Ors.

[SUPREME COURT] ...................................................................... 5

Brij Kishore Sharma & Anr v. M/S. Ram Singh & Sons & Ors.,
[SUPREME COURT] ...................................................................... 6

ANSWER TO THE DEBATABLE QUESTION ................................ 7

REMEDY ........................................................................................... 7

DRAFT ............................................................................................... 8

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 DECLARATION FOR PROJECT

This Project based on a hypothetical civil dispute relating to ‘Non-Joinder of Parties’,

submitted by the undersigned to Symbiosis Law School, NOIDA, Symbiosis International
(Deemed University), Pune for the course of ‘Civil Procedure Code and Limitation Act I’
as a part of Internal Assessment Mode I is based on an imaginary situation with hypothetical
names which has no relation to any person living or dead. The research work herein has not
been submitted elsewhere for award of any degree or any other purpose whatsoever.

The ‘remedy’ and ‘draft’ portion of the project has been submitted purely for understanding
applicability of provisions of the Code of Civil Procedure, 1908 as part of project for the
aforesaid course. The designation/s, if any, given in the project are purely hypothetical.

The contents of the project are original and not plagiarised, and not copied from any real
case. The material borrowed from other sources and incorporated in the project has been duly
acknowledged.

I have also taken due care that the contents of my project are not similar or same as another
learner’s project for the aforesaid course.

I understand that I could be held responsible and accountable for plagiarism, is any, even if
detected later.

Date: August 7, 2019

Name: Tanmay Diwan

PRN: 16010223095

Batch: 2016- 21

Programme: B.A. LL.B

GROUP: A

Symbiosis Law School, NOIDA

Symbiosis International (Deemed University), Pune

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 HYPOTHETICAL SITUATION

One Mr Vijay Verma (Plaintiff) leased his property to Mr Sanjay Sharma’s (Defendant)
partnership firm to carry out trade and other business activities. This arrangement was
followed for 7 months. However, since May 2019, the Defendant has defaulted in his
payment of rent. As of the 1st of August, the Defendant has vacated the premises but has not
repaid the dues.

Plaint for the recovery of the principal sum of Rs. 1, 20,000 was filed by the Plaintiff against
the Defendant. During the pendency of the suit, one of the partners died but a legal
representative was not brought forth on record i.e. that a legal representative was not added to
the cause. The Plaintiffs has filed for the recovery of the sum due, and the application has
been filed for the purpose of the same before the Hon’ble City Civil Court. The defendant’s
written submission pleaded for the dismissal of the suit on account of non-joinder of
necessary party.

STATUS OF PARTIES: Mr Vijay Verma - Aggrieved Party and Plaintiff;

M/S. Sanjay Sharma & Sons – Opposite Party and Defendant

STAGE: DEFENDANT EVIDENCE

DEBATABLE QUESTION

Whether the Court can dismiss a suit if a legal representative of one of the partners in a
partnership firm dies during the pendency of a suit?

RULE APPLICABLE

Order 1, Rule 9: Misjoinder and non-joinder1.-

No suit shall be defeated by reason of the misjoinder 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:

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

1
Order I, Rule 9 of the Code of Civil Procedure, 1908

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 IRAC OF THE RELEVANT CASE LAWS:

Deputy Commissioner, Hardoi v. Rama Krishna Narain & Ors.2 [SUPREME COURT]

Facts: In this matter, an appeal was filed against the decision of the special judge by The
Deputy Commissioner, Hardoi. The decision which was appealed had allowed for landlords
to have proprietary interest in a certain piece of land which formed a part of Bharawan. The
relevant landlords were brought on record as respondents in the appeal as was a creditor.
However, with respect to the other creditors; their names were not brought on record in the
memorandum of parties, and with respect to the same, they were not brought on record as
respondents in the appeal. Accordingly, an application was made by the appellant for joining
the creditors as respondents in the appeal. This application was rejected, and subsequently the
appeal was dismissed on the ground that it was fallacious and could not be entertained
without the presence of all the creditors as respondents. Hence, this brought forth the petition.

Issue: Order I Rule 9 of the Code of Civil Procedure. S. 11(2) of the U.P. Encumbered
Estates Act, 1934

Application: The Court held that creditors who were not actively participating in the
proceedings were not necessary parties to an appeal from an order rejecting a claim made in a
proceeding under section 11 (2) of the U. P. Encumbered Estates Act, 1934. It was
adjudicated that specific rules of the Code regarding the bringing parties on record should not
be applied to such proceedings. The Apex Court relied on the judgement by the Allahabad
High Court in the matter of Benares Bank Ltd. v. Bhagwandas3, which has brought forth two
tests for determining the issue whether a particular party is a necessary party to the
proceedings viz. 1) There must be right to some relief against such party in respect of the
matter involved in the proceedings in question; and 2) It should not be possible to pass an
effective decree in the absence of such a party.

Conclusion: The Court cited the judgement of the Allahabad High Court in ascertaining the
bare essentials for a party to be considered a necessary party with respect to the non-joinder
provision in Order I Rule 9 of the Code of Civil Procedure.

2
1953 AIR 521, 1954 SCR 506
3
AIR 1946 All 269

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Brij Kishore Sharma & Anr v. M/S. Ram Singh & Sons & Ors.4, [SUPREME COURT]

Facts: Plaintiff was dealing with the defendant for the purchase and sale of goods. The
plaintiff filed a case for the recovery of the principal sum of Rs. 58,880/-. During the
pendency of the proceedings, one of the partners in the firm died however, a legal
representative was not brought on record. The suit was dismissed by the Civil Court however,
on appeal; the Hon’ble High Court of Bihar allowed it and decreed the suit. On account of
this, a Special Leave Petition was filed.

Issue: The written statement raised two points viz. 1. Whether the suit is maintainable on
account of the death of one of the partners without a legal representative brought forth on
record and 2. That being a partnership firm, all the partner’s co-nominees have not been
impleaded hence will the suit go forth.

Rule: Order I Rule 9 of Code of Civil Procedure. Section 45 of the Indian Contract Act.

Application: The court adjudicated that even though Section 45 of the Indian Contract Act
elucidates that even in the case that there are two or more persons who may sue or be sued in
the name of a firm under the ICA provisions, it is not essential for the legal representatives to
be brought on record if any such persons (partners) died, whether during the pendency of the
suit or prior to its institution.

The Court held that irrespective of the limitation imposed under Section 45 of the Act, during
the pendency of the suit or before its institution, a partner in a partnership firm dies; it is not
essential for a legal representative to be joined as a party in the suit. Furthermore, a suit
cannot be defeated solely on the basis of non-joinder or misjoinder of parties in accordance to
Order I Rule 9 of the Code.

Conclusion: The Court held that it is not imperative for a legal representative to be brought
forth on record if a partner in a partnership firm dies during the pendency of a suit. The suit
shall not be defeated by reason of non-joinder of parties and as per the court’s
pronouncement; a legal representative to a partner in a partnership firm is not a necessary
party, ergo the pronouncement is not in contravention to Order I Rule 9 of the CPC. The
appeal was subsequently dismissed.

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AIR 1996 SC 1805
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 ANSWER TO THE DEBATABLE QUESTION

The question was whether the Court can dismiss a suit if a legal representative of one of the
partners in a partnership firm dies during the pendency of a suit. Upon the reading of the
governing provision, it is evident that a suit can only be dismissed for non-joinder if the party
in concern is a necessary party. As per the Apex Court’s pronouncement in the Deputy
Commissioner5 matter, certain essentials were laid down with respect to ascertaining a
necessary party viz. 1) There must be right to some relief against such party in respect of the
matter involved in the proceedings in question; and 2) It should not be possible to pass an
effective decree in the absence of such a party.

With respect to the question at hand, a legal representative to one of the partners in a
partnership firm who happened to have died during the pendency of a suit does not fit into the
bracket of a necessary party as with reference to the Hon’ble Supreme Court’s decision in the
Brij Kishore Sharma6 case, Section 45 of the Indian Contract Act was pointed out which
specified that the joining of a legal representative is not essential to be joined as a party to a
suit. Therefore, the Court cannot dismiss a suit if a legal representative of one of the partners
in a partnership firm dies during the pendency of a suit.

REMEDY

An application under Section 151 of the Code of Civil Procedure may be filed before the
Hon’ble Court where it can be prayed for the Court to exercise its inherent powers for the
ends of justice or to prevent abuse of the process of the court. Furthermore, upon referring to
the aforementioned binding judicial pronouncements, it is evident that the dismissal of a suit
on the basis of non-joinder of parties would be incorrect; therefore an application under
Section 151 of the Code would be an apt remedy.

5
Supra note 2
6
Supra note 4

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 DRAFT

APPLICATION UNDER SECTION 151, CPC FOR

EXERCISE OF INHERENT POWER OF COURT

In the Hon’ble City Civil Court at Dehradun, Uttarakhand

Suit No. 234/2019

Vijay Verma...………………………………………………………………Plaintiff/Applicant

Versus

M/S. Sanjay Sharma & Sons……………..…………………………Defendant/Non-Applicant

The plaintiff-petitioner above-named states:

1. That the plaintiff has filed a suit for the recovery of the principal sum of Rs 1, 20,000
for the rent due to him from the defendant.
2. That the suit is maintainable as no suit shall be defeated by reason of non-joinder of
parties.
3. That the arguments raised in the written statement are fallacious as a legal
representative is not a necessary party.

It is therefore prayed that-

(a) Order be made for the recovery of dues.

(b) Any other further order or orders as the court may deem fit and proper.

VERIFICATION

I, Vijay Verma, S/o late Vivek Verma, Resident of 420 Bara Lane, Dehradun, do hereby
verify that the contents of this application are true to best of my knowledge and belief.

Verified at Dehradun on 07.08.2019.