- (1.) This is an application under O.7, R.11 of the Civil P.C. filed by the defendant No. 2, inter alia, praying for an order that the suit be dismissed against the defendant No. 2 and for other reliefs. Mr. Mitra, learned advocate for the defendant No. 3 refers to paragraph 3 of the plaint which is as follows : " The defendant No. 2 at all material times acted as the Steamer Agent of the defendant No. 1 in Calcutta and looked after the interest of the defendant No. 1, inter alia, in the matter of booking of freight and on going ship Chandlers etc. at the Port of Calcutta in respect of the Vessels under the ownership and/or Charter of the defendant No. 1." Mr. Mitra in paragraph 18 refers as follows : "The plaintiff states that the defendant No. 2 has been made a party herein so that the issues involved herein may be adjudicated in its presence and no relief is claimed as against the defendant No. 2." It is submitted by Mr. Mitra that the plaintiff in the suit has not claimed any relief against the defendant No. 2 and the plaint does not disclose any cause of action against the defendant No. 2. Mr. Mitra refers to the provision of O.7, Rr.11 (a) and (d) of the Civil P.C. and Mr. Mitra submits that the plaint shall be rejected where it does not disclose a cause of action or where the suit appears from the statement in the plaint to be barred by any law.
(2.) Mr. Mitra learned advocate on behalf of the defendant No. 2 refers to the provisions of O. 1, R.3 of the Civil P.C. which is as follows : 1. All persons may be joined in one suit as plaintiffs 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 in such persons, whether jointly, severally or in the alternative: and (b) if such persons brought separate suits, any common question of law or fact would arise. Mr. Mitra submits that since the plaintiff has not prayed for any relief against the defendant No. 2, the defendant No. 2 cannot be joined as defendant No. 2 in the suit. The provisions of O.1, R.3 of the Civil P.C. is exhaustive and no person can be joined as a defendant unless he comes within the provisions of O.1, R.3 of the Civil P. C. which is exhaustive. Mr. Mitra relied upon a reported decision of the Calcutta High Court in AIR 1976 Cal 467, Union of India v. Chinoy Chablani and Co.
(3.) Order 1, Rule 3 of the Civil P.C. prescribes who should be joined as defendants in a suit. O.1, R.5 of the Civil P.C. prescribes that it shall not be necessary that every defendant shall be interested as to all the reliefs claimed in the suit against him. There are two categories of defendants: (i) a necessary party, and (2) a proper party. A necessary party is a person who has any interest in the subject-matter involved in the suit and who could be affected by the decision. A party should be considered to be a necessary party if these two conditions are fulfilled : (a) There must be a right to some relief against the party not joined, i.e. no decree can be passed without affecting the rights of the absentee party. (b) The presence of the absentee party should be necessary in order to enable the Court to effectually adjudicate upon and settle all questions involved in the suit. Although a party may not be a necessary party to a suit, he might be a proper party. In the decision reported in AIR 1971 SC 761, Jugraj Singh v. Jaswant Singh, it was held by M. Hidayatullah, C.J., A.N. Ray and I.D. Dua, JJ. that a person may not be a necessary party but may be a proper party. If that party appears before the Court, the Court would know from him all relevant facts and also documents which are required for proper adjudication of the subject-matter of the suit. Though a party is not a necessary party yet he might be a party for the sake of convenience of justice.;