Law: Civil Procedure Code (V of 1908)

Section: O.I,r.1

Civil Procedure Code (V of 1908), ------O.I, r. I-Necessary party-Proper party-Pro forma defendant in suit, not impleaded in appeal-Appeal not liable to dismissal on ground of failure to impleaded a necessary party. A necessary party is one without whose presence no effective decree can be granted. A proper party is one whose presence is necessary in order to completely and effec­tively adjudicate upon all questions arising in a suit. The test is whether a fruitful decree could be passed in the case. In a suit for a declaration that a certain mutation of inheritance in favour of the defendant whose status as son of the last owner was disputed would not affect the reversionary rights of the plaintiff after the death of the widow of the last owner, who according to custom had a life estate in the land mutated, the widow, though impleaded as a pro forma defendant in the suit, was not impleaded in appeal and the appeal was dismissed on that ground. Held, that the widow was not a necessary party, and the dismissal of appeal on that ground was wrongful. Held further, that in the case of a pro forma defendant the rule of res-judicata does not apply, and the argument that because the suit had been dismissed against the widow as well, therefore, she was a necessary party by reason of the operation of the rule, was not helpful. JUDGMENT KAIKAUS, J.-The property in dispute in the suit, out of which this second appeal arises, belonged to one Bakhsha who died in 1946. He is alleged to have made a gift of the whole of his property to one Ghulam Nazik. A mutation of this gift was entered on the 29th of May 1945. Before it could be sanctioned, Bakhsha died. A mutation on the basis of gift was rejected but a mutation of inheritance was sanctioned in favour of the same Ghulam Nazik on the 27th of April 1948, on the ground that he was the son of the deceased. The deceased, it may be stated, did leave a widow, Mst. Azmat by name. Muhammad Amin, who is a nephew of Bakhsha deceased, filed the present suit on the 19th of July 1952 for a declaration that the defendant was not the son of Bakhsha, and that the mutation in his favour would not affect his reversionary rights after the…

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