On December 6, the division bench of the Calcutta High Court ruled that failure to join a 'necessary party' is a ground to reverse or substantially vary a decree in appeal and can itself be a ground to remand a suit after setting aside the decree passed in such suit in an appropriate case. As a result, the Court reasoned that, because such a general rule was not statutorily intended to apply to suit proceedings involving non-joinder of a necessary party, such non-joinder would be a ground to reverse, substantially vary, or remand a decree in appeal.
The rationale guiding the Court's decision was that the plain statutory language of Section 99 of the CPC barred the reversal, substantial varying, or remanding of a decree in appeal due to any misjoinder or non-joinder of the parties or causes of action, or any error, defect, or irregularity in any proceedings in the suit, not affecting the merits of the case or the Court's jurisdiction, subject to the proviso that the said provision would not.

The Court also pointed out that the statutory scheme of Order I Rules 9 and 13 read with Section 99 contemplates non-joinder of necessary parties as a ground for rejection of suit and thus stood on a distinct footing than non-joinder of parties.

"Admittedly, no issue had been framed as to whether suit was bad for non-joinder of necessary party but the learned Court below had dismissed the suit on such issue. Framing of issues is an important stage at which the scope of the trial is determined. Basically, the correct decision of civil lis largely depends on correct framing of issues, correctly determining the real points in controversy which need to be decided. 'Issue' means a point in question at the conclusion of the pleading between contending parties in an action and issues are to be framed in respect only of those facts which have been alleged by one party and either denied or not admitted by the other party and duty of framing issues primarily rests on the Court but such duty can be shared with the pleaders.”

The current proceedings stem from an appeal filed against an order of a lower court dismissing a suit filed for recovery of khas possession after eviction of trespassers and for a mandatory injunction. Defendants specifically claimed that the suit was barred due to a misjoinder of causes of action, as well as by the provisions of Order 1 Rule 8 CPC, because all trespassers, members of the All India Trinamool Congress ('AITC"), Sahapur East Branch, had not been made parties to the suit proceedings.

Case Title: Kalyan Kumar Bera v. Milan Kumar Khutia & Ors., 
Citation: FAT 451 of 2016
Link: 

https://hcservices.ecourts.gov.in/ecourtindiaHC/cases/display_pdf.php?filename=7yg5D%2FmJmLJFbv9l4Wl3vc%2FgQmroniG%2FBVNT8%2F7kjppavqMjIuGGGq2Q193sP%2FjJ&caseno=FAT/451/2016&cCode=3&appFlag=