PROCEDURAL LAW & SUBSTANTIVE LAW

PROCEDURAL LAW SUBSTANTIVE LAW

Rules and procedures to enforce rights by Defines, creates and amends rights and
the court of law imposes duty

Law that governs the way in which courts System of rules that regulate the behaviour
proceedings are undertaken of the citizens of the country

The laws that determine how the rights of

the plaintiff and defendant will be protected
It defines how a crime or tort will be
and enforced throughout the course of the
charged and how the evidence and case
case. It includes procedure, pleading, and
facts will be presented and handled.
evidence.

E.g.: The definition of ‘manslaughter’ is

E.g.: The right to a speedy trial for a person
substantive
accused of ‘manslaughter’ is procedural.

Procedural Laws provides rules to A Substantive Law also provides for

determine, how the Substantive Laws are to Prohibitions administered by courts which
be administered, enforced, changed, and behaviours are to be allowed and which are
used in the mediation of disputes -such as prohibited- such as law providing
filing charges or presenting evidence in prohibition against murder or the sale of
court. narcotics.

Creates the mechanism for the enforcement

of law
 States the rights and duties of the citizens

No penal provisions Contains penal provisions

Deals with affairs inside the court Concerned with matters outside the court

JUDGEMENT, DECREE & ORDER

DECREE:

Decree means a formal expression of an adjudication which conclusively determines the

rights of the parties regarding matters in controversy in a suit, and it can be a preliminary or
final, or partly preliminary or partly final. [s.2(2)]

· There must be a formal expression of adjudication. In simple terms, to be a decree, the

court must formally express its decision in the manner provided by law. A mere comment
of the judge cannot be a decree.

· Adjudication means judicial determination of the matter in dispute.

· Conclusive determination:- The decision must be complete and final

· Decree is appealable

Types of decrees:

Preliminary decree:-

§ former stage where rights of the parties are declared.

§ It does not dispose of the suit completely.

Final decree:-

§ A decree is said to be final when it disposes of the suit completely

§ Final decree can be passed without passing preliminary decree

Partly preliminary and partly final decree:-

§ A decrease shall be held as partly preliminary and partly final, when it determines certain
disputes but leaves the rest open for further decision

Decree- holder [s.2(3)] :- any person in whose favour a decree or an order capable of
execution has been passed

JUDGEMENT [s.2(9)]:

· Statement given by the court on the grounds of a decree or order

· Judgement is the reasoning given by the judge as to why the decree was given

· Not necessary to have a formal expression

· It is final in nature; while a decree is of three types

· It is not necessary for a judge to give a statement in a decree though it is necessary in a

judgement

ORDER [S.2(14)]:

· A formal expression of any decision of a civil court which is not a decree

· It should be a formal expression of an adjudication of the court which is not a decree

· Order is generally not appealable

· May or may not conclusively determine a right

FOREIGN JUDGEMENT

· A foreign court is a court situated outside India and not established or controlled by the
central government.

· Foreign judgement is the judgement of a foreign court.

· The judgement of a foreign court of competent jurisdiction can be enforced in India

· However the decree of the foreign court has to pass the test of s.13 of CPC which
specifies certain exception under which the foreign judgement becomes inconclusive and
is therefore not executable or enforceable in India

· A judgement delivered by a foreign court of competent jurisdiction can be enforced by an

Indian court and will operate as res judicata between the parties, except in the cases
mentioned in s.13

s. 13 (When foreign judgment not conclusive) :- Foreign Judgements which are not
executable:-

a. If the foreign judgement is not by a competent court then it will be considered

null and void and therefore not executable in India
b. If the foreign judgement is not on merits, that is, the judge has to take into
consideration of all the evidences and has to apply his mind, if not, then then
foreign judgement will not be executable
c. Foreign judgement against international or Indian law
d. Foreign judgement opposed to natural justice. It must follow the principles of
natural justice, otherwise not executable
e. If the judgement is obtained through fraud, then that foreign judgement won’t
be executable
f. Foreign judgement in breach of any law in force in India

PRESUMPTION AS TO FOREIGN JUDGEMENT: S.14

S.14 declares that The Court shall presume upon the production of any document purporting
to be a certified copy of a foreign judgement, that such judgement was pronounced by a
Court of competent jurisdiction, unless the contrary appears on the record, or is proved.

However, if for admissibility of such copy any further condition is required to be fulfilled, it
can be admitted in evidence only if that condition is satisfied.

CONCLUSIVENESS OF FOREIGN JUDGEMENT :

A foreign judgement is conclusive as to any matter adjudicated upon by a competent foreign
court. S.13 of the Code in essence enacts a rule of res judicata in relation to foreign
judgement. Hence if a foreign judgement is delivered by a court having jurisdiction in the
matter, it would operate as res judicata.

In considering whether a judgement of a foreign court is conclusive, the courts in India will
not require whether conclusions recorded by a foreign court are correct or findings otherwise
tenable.

In other words, the court cannot go into merits of the original claim and it shall be conclusive
as to any matter thereby directly adjudicated upon between the same parties subject to the
exceptions enumerated in clauses (a) to (f) of S.13

MESNE PROFITS

· S. 2(12)

· The profits which the person in wrongful possession is receiving or might receive with
due diligence for the wrongful possession of a property

· If the true possessor is deprived of his right to possess due to the wrongful possession,
then such a person will be entitled to restoration of his possession and also for the
compensation

· Mesne profits are compensation paid to the real owner

· Mesne profits include interest on such profits which the defendant obtained through the
wrongful possession

· The mesne profits will be determined by the courts, on the basis of:-

o Nature and condition of the property

o Location of the property

o Value of the property

o The actual profit gained by the defendant

· Mesne profits must include interests received during the wrongful possession

· But it does not include any profit earned due to improvement in the property made by the
person in unlawful possession of such property

· Burden of proof will be upon the plaintiff who claims mesne profits to prove that he is the
lawful owner of the property, and is deprived of his right to enjoy

· The court will fix the amount according to the circumstances of the case

· To claim mesne profits the following conditions are to be satisfied:-

o The defendant should be in wrongful possession of the property

o The plaintiff must be entitled to actual possession

JURISDICTION OF COURTS TO TRY CIVIL SUIT

· Under the CPC, a civil court has jurisdiction to try all suits of a civil nature unless they
are barred.

· A civil court has jurisdiction to try a suit if two conditions are fulfilled:-

o The suit must be of a civil nature

o The cognizance of such suit should not have been expressly or impliedly
barred

· A decree passed by a court without jurisdiction is a nullity and the validity of it can be
challenged at any stage of the proceedings

· The expression “suit of a civil nature” will cover private rights and obligations of citizens

· Political and religious questions are not covered by the expression.

· Examples for suits of civil nature:-

o Suits relating to rights to property

o Suits for damages for civil wrongs

 o Suits for rents, etc.

· Suits not of civil nature:-

o Suits involving principally caste questions

o Suits involving purely religious rites or ceremonies, etc.

· If there is a specific statute or law that prohibits a court from hearing a particular type of
suit, such as a suit involving a matter that falls under the exclusive jurisdiction of a
specialized tribunal, then the court’s jurisdiction may be expressly barred

· On the other hand, if there is a legal principle or doctrine that suggests that a court should
not entertain a certain type of suit, even if there is no explicit provision, then the court’s
jurisdiction may be impliedly barred

· In dealing with the question whether a civil court’s jurisdiction to entertain a suit is barred
or not, it is necessary to bear in mind that every presumption should be made in favour of
the jurisdiction of a civil court. The exclusion of jurisdiction of a civil court to entertain
civil cases should not be readily inferred unless the relevant statute contains an express
provision to that effect

· Burden of proof:- the party who seeks to oust the jurisdiction of civil court has to establish
it.

· The parties are not at liberty to choose or by mutual consent to diminish the jurisdiction
of a competent court

RES JUDICATA AND RES SUBJUDICE

S.10 - Res sub judice: Stay of suit

● Deals with stay of civil suit

● Provides that no court shall proceed with the trial of any suit in which the matter in
issue is also directly and substantially in issue in a previously instituted suit between
the same parties and that the court in which the previous suit is pending is competent
to grant relief claimed.
● Rule applies to trial of a suit and not institution
 ● It also does not preclude a court from passing interim orders, such as grant of
injunction or stay, appointment of receiver, etc..
● Applies to appeals or revisions

Conditions for applicability of S.10

1. There must be two suits, one previously instituted and the other subsequently
instituted.
2. The matter in issue in the subsequent suit must be directly and substantially in issue in
the previous suit.
3. Both the suits must be between the same parties or other representatives
4. The previously instituted suit must be pending in the same court in which the
subsequent suit is brought or in any other court in India or in any court beyond the
limits of India established or continued by the Central Government or before the
Supreme Court.
5. The court in which the previous suit is instituted must have jurisdiction to grant the
relief claimed in the subsequent suit.
6. Such parties must be litigating under the same title in both the suits.

As soon as the above conditions are satisfied, a court cannot proceed with the subsequently
instituted suit since the provisions contained in S.10 are mandatory and no discretion is left
with the court.

● For S.10 to be attracted it is essential that the entire subject matter in controversy must
be the same between the previous suit and the subsequent suit.

● The court should even suomotu stay the second suit if it is satisfied that the section
applies.
● An application for stay under this section can be made at any stage of the suit.
● Suit pending in foreign court:
Explanation to S.10 provides that there is no bar on the power of an Indian Court
to try a subsequently instituted suit if the previously instituted suit is pending in a
foreign court.
 ● Inherent power to stay:
Even where the provisions of S.10 of the code do not apply, a civil court has
inherent power under S.151 to stay a suit to achieve the ends of justice. Similarly a
court has inherent power to consolidate different suits between the same parties in
which the matter in issue is substantially the same.

● Is the right to waiver applicable on S.10?:

S.10 lays down a rule of procedure and does not take away jurisdiction of the
court. Hence, if the parties give consent or do not raise objection and waive their right, the
court may decide the suit. No objection thereafter be raised by the aggrieved party.

● Interim orders:
An order of stay of suit does not take away the power of the court from passing
interim orders. Hence, in a stayed suit, it is open to the court to make interim orders,
such as, attachment before judgement, temporary injunction, appointment of receiver,
amendment of plaint or written statement, etc..

S.11- Res Judicata

● Res judicata is a Latin expression or term that means matter once adjudicated, cannot
be re-adjudicated.

● The doctrine of res judicata technically means that a matter in issue which has already
been tried by competent court, then trial between the same parties in respect of the
same matter shall not be allowed.

● It emphasises that a subject matter of the suit which has already been decided, is
deemed to be decided forever, and cannot be reopened by the same parties.

● This doctrine has been accepted in all civilized legal systems.

 ● The principle is also founded on justice, equity, and good conscience which require
that a party who has once succeeded on an issue should not be harassed by
multiplicity of proceedings involving the same issue.

● In the case, Daryao Singh v. State of Uttar Pradesh AIR 1961 SC 1457, the court held
that Res Judicata is based on the consideration of Public Policy.

The doctrine of res judicata is founded on three maxims:

● Nemo debet bis vexari pro una et eadem causa (no man should be vexed twice for the
same cause)
● Interest reipublicae ut sit finis litium (it is in the interest of the State that there should
be an end to a litigation)
● Res judicata pro veritate occipitur (a judicial decision must be accepted as correct)
● Ex captio res judicata (one suit and one decision is enough)

Conditions for S.11

1. The matter directly and substantially in issue in the subsequent suit or issue must be
the same matter which was directly and substantially in issue either actually (Expl.
III) or constructively (Expl. IV) in the former suit (Expl. I) {read Expl. VII also}.

2. The former suit must have been a suit between the same parties or between parties
under whom they or any of them claim {Expl. VI}.

3. Such parties must have been litigating under the same title in the former suit.

4. The court which decided the former suit must be a court competent to try the
subsequent suit or the suit in which such issue is subsequently raised. {Expl. II and
Expl. VIII}.

5. The matter directly and substantially in issue in the subsequent suit must have been
heard and finally decided by the court in the former suit {Expl. V}.
Illustration:

1. A sues B for damages for breach of contract. The suit is dismissed. A subsequent suit
by A against B for damages for breach of the same contract is barred. A’s right to
claim damages from B for breach of contract having been decided in the previous suit,
it becomes res judicata, and cannot therefore be tried in the subsequent suit.

2. P, a partnership firm filed a suit against B to recover Rs. 50,000/-. The suit was
dismissed on the ground that it was not maintainable since the partnership was not
registered as required by the provisions of the Indian Partnership Act, 1932. The firm
was thereafter registered and a fresh suit was filed against B on the same cause of
action. The suit is not barred by res judicata.

Res judicata Res sub judice

● Applies to a matter adjudicated upon ● Applies to a matter pending trial

● Bars the trial of a suit or an issue ● Bars trial of a suit which is pending
which has been decided in a former decision in a previously instituted
suit. suit

PLACE OF SUING

Suits may be of different types. They may relate to movable properties or immovable
properties; may be based on contracts or torts; may be suits for accounts and so on.

The expression “place of suing” simply means the venue for trial. S.15 to S.20 of CPC
regulate the forum for the institution of suits.

PECUNIARY JURISDICTION ( S.15)

● S.15 of the code refers to the pecuniary jurisdiction.

 ● It states that every suit should be instituted in the court of the lowest grade competent
to try it.
● The rule laid down in the section is a rule of procedure and does not affect the
jurisdiction of the court.
● Hence, a decree passed by a court of a higher grade cannot be said to be without
jurisdiction. It is merely an irregularity.

Suppose if the pecuniary jurisdiction of a Small Causes Courts is upto Rs. 50,000. Therefore
a suit to recover Rs. 5000 as damages for breach of contract can be tried by any of the courts.
But according to S.15 of the Code, the suit must be filed in the lowest court i.e. in the Small
Causes Court. But if the suit is filed in the City Civil Court and the decree is passed by that
court, it is not a nullity.

● Prima facie, it is the plaintiff’s valuation in the plaint that determines the jurisdiction
of the court and not the amount for which ultimately the decree may be passed by the
court.

Thus if the pecuniary jurisdiction of the court of the lowest grade is Rs. 10,000 and the
plaintiff files a suit for accounts and finally the court finds on taking the accounts that Rs.
15,000 are due, the court is not deprived of its jurisdiction to pass a decree for that amount.

● Usually a court will accept a valuation of the plaintiff in the plaint and proceed to
decide the suit on merits on that basis. However, that does not mean that the plaintiff
in all cases is at liberty to assign any arbitrary value to the suit, and to choose the
court in which he wants to file a suit.

● If the plaintiff deliberately undervalues or overvalues the claim for the purpose of
choosing the forum, the plaint cannot be said to be correctly valued and it is the duty
of the court to return it to be filed in the proper court.

● If it appears to the court that the valuation is falsely made in the plaint for the purpose
of avoiding the jurisdiction of the proper court, the court may require the plaintiff to
prove that the valuation is proper.
 ● If the court is unable to come to a finding regarding the correct valuation of the relief,
the court has to accept the valuation of the plaintiff.

TERRITORIAL JURISDICTION

For the purpose of territorial jurisdiction of a court, suits may be divided into four classes,
viz.:
● Suit in respect of immovable property
● Suits for movable property
● Suits for compensation for wrong (tort)
● Other suits

1. Immovable property: S.16-18

● S. 16-18 deals with suits relating to immovable property.

● Clauses a to e of S.16 deal with the following five kinds of suits:

a. Suit for recovery of immovable property

b. Suit for partition of immovable property

c. Suit for foreclosure, sale, or redemption in case of mortgage of

or charge upon immovable property

d. Suits for determination of any other right to or interest in

immovable property

e. Suits for torts to immovable property

● These suits must be filed in the court within the local limits of whose jurisdiction the
property is situated.
● S.17: states that where a suit is to obtain a relief respecting, or damage for torts to,
immovable property situate within the jurisdiction of different courts, the suit can be
filed in the court within the local limits of whose jurisdiction any portion of the
 property is situate provided that the suit is within the pecuniary jurisdiction of such
court.
● S.18: if the jurisdiction is uncertain, it must be recorded by the court saying that there
is uncertainty and proceed with the case. The decree issued by that court will be
effective as if the property was within its jurisdiction. However, if no statement is
recorded and an objection is raised before the higher court, in that case the objection
will only be entertained if there is no reasonable ground for uncertainty when filing
the suit and there has been a consequent failure of justice.

2. Movable property: S.19

● A suit for wrong to movable property may be brought at the option of the plaintiff
either at the place where the wrong is committed or where the defendant resides,
carries on business or personally works for gain.
● Where such wrong consists of a series of acts, a suit can be filed at any place where
any of the acts has been committed. Similarly, where a wrongful act is committed at
one place and the consequences ensue at another place, a suit can be instituted at the
option of the plaintiff where the action took place or consequences ensued.
Illustration:
a. A, residing in Delhi, beats B in Calcutta. Bmay sue A either in Calcutta or in
Delhi.
b. A, residing in Delhi, published in Calcutta statements defamatory to B. The
newspaper is circulated in Bombay, Madras, and Raipur. B may sue A either in
Calcutta or in Delhi or in Bombay or in Madras or in Raipur.

3. Compensation for wrong: S.19

4. Other suits: S.20
● Provides for all other cases not covered by any of the foregoing rules
● All such suits may be filed at the plaintiff’s option in any of the following courts:
a. Where the cause of action wholly or partly arises; or
b. Where the defendant resides, or carries on business or personally works for
gain; or
c. Where there are two or more defendants, any of them resides or carries on
business or personally works for gain, provided that in such case
 I. either the leave of the court is obtained; or
II. the defendants who do not reside or carry on business or personally
work for gain at that place acquiesce in such institution.

Illustration:
A is a tradesman in Calcutta, B carries on business in Delhi. B, by his agent in
Calcutta, buys goods of A and requests A to deliver them to the East Indian Railway
Company. A delivers the goods accordingly in Calcutta. A may sue B for the price of
the goods either in Calcutta, where the cause of action has arisen, or in Delhi, where B
carries on business.

A resides at Simla, B at Calcutta and C at Delhi. A, B and C being together at

Benaras, B and C make a joint promissory note payable on demand, and deliver it to
A. A may sue B and C at Benaras, where the cause of action arose. He may also sue
them at Calcutta, where B resides, or at Delhi, where C resides; but in each of these
cases, if the non-resident defendant objects, the suit cannot proceed without the leave
of the Court.
JURISDICTION AS TO SUBJECT-MATTER

Different types of courts have been given the power to decide different kinds of cases. Some
courts can’t undertake some kind of suit. If a court doesn’t have jurisdiction upon the subject-
a matter of the suit and if it has given and decree, order, or judgement in that condition that
decree, order, or judgement will be null and void.

OBJECTIONS AS TO JURISDICTION: S.21

1. OBJECTION AS TO TERRITORIAL JURISDICTION

It is well-settled that the objection as to the local or territorial jurisdiction of a court does not
stand on the same footing as an objection to the competence of a court to try a case.

An objection as to local jurisdiction of a court can be waived and this principle has been
recognised by Section 21 of the Code.
Under Section 21(I), no objection as to the place of suing will be allowed by an appellate or
revisional court unless the following three conditions are satisfied:
i). The Objection was taken in the court of first instance;
ii). It was taken at the earliest possible opportunity and in cases where issues are
settled at or before settlement of issues; and
iii). There has been a consequent -failure of justice.
All these three conditions must coexist.

2. OBJECTION AS TO PECUNIARY JURISDICTION

As discussed above, as a general rule, it is the plaintiff’s valuation in the plaint that
determines the jurisdiction of court and not the amount for which ultimately the decree may
be passed by the court. But if the defendant disputes the valuation put by the plaintiff, it is the
duty of the trial court to inquire into it and to pass an appropriate order. But no objection as to
overvaluation or undervaluation will be allowed by any appellate or revisional court unless
the following three conditions exist:
i). The objection was taken in the court of first instance;
ii). It was taken at the earliest possible opportunity and in cases where issues are settled, at or
before settlement of issues; and
iii). There has been a consequent failure of justice.
All these three conditions must coexist.

ILLUSTRATION: A file suit against B to recover possession of a house. He values his claim
in the plaint at Rs 8000. The suit is filed in Court C, which has jurisdiction to try suits of a
value to Rs 10,000. The market value of the house is Rs 12,000. But B does not object to
jurisdiction of the court. The decree is passed in favour of A. In appellate court, B cannot take
the objection about the pecuniary jurisdiction of court C.

3. OBJECTION AS TO SUBJECT - MATTER JURISDICTION

A court cannot adjudicate upon a subject-matter which does not fall within its province as
limited or defined by law.
A jurisdiction as to the subject-matter of suit is regarded as essential
If the court does not possess that jurisdiction, a judgement given, order made or decree
passed is absolutely null and void, which may be set aside in appeal, review or revision.

It’s validity can be challenged even in collateral proceedings.

4. OBJECTION IN EXECUTION PROCEEDINGS

Sub-section (3) of Section 21 makes it clear that the principles of this apply to execution
proceedings also.

“No objection as to the competence of the executing Court with reference to the local limits
of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection
was taken in the executing Court at the earliest possible opportunity, and unless there has
been a consequent failure of justice.”

BAR OF SUIT: S. 21A

It is clear from the above discussion that as per Section 21, no objection to the place of suing
can be taken at an appellate or revisional stage of the proceedings.

Section 21-A, as inserted by the Amendment Act of 1976, now specifically provides that no
substantive suit can be filed to set aside a decree passed by a court on objection as to the
place of suing.

It runs as follows:
“No suit shall lie challenging the validity of a decree passed in a former suit between the
parties, or between the parties under whom they or any of them claim, litigating under the
same title, on any ground based on an objection as to the place of suing.”

Explanation: The expression ‘former suit’ means, “a suit which has been decided prior to the
decision in the suit in which the validity of the decree is questioned, whether or not the
previously decided suit was instituted prior to the suit in which the validity of such decree is
questioned.

Joinder, Mis-Joinder and Non-Joinder

Joinder of parties

● The question of joinder of parties may arise either as regards the plaintiffs or as
regards the defendants.
● The question of joinder of parties arises only when an act is done by two or more
persons or it affects two or more persons.

a. Joinder of plaintiffs: Order 1 Rule1

Rule 1 provides for joinder of plaintiffs. It states that all persons may be joined in one suit as
plaintiffs if the following two conditions are satisfied:
(i) the right to relief alleged to exist in each plaintiff arises out of the same act or
transaction; and
(ii) the case is of such a character that, if such persons brought separate suits, any
common questions of law or fact would arise.

Illustration: A enters into an agreement jointly with B and C to sell 100 tins of oil. A
thereafter refuses to deliver the goods. Here both, B and C, have each of them a right
to recover damages from A. The said right arises out of the same transaction, namely,
the breach of agreement; and common questions of law and fact would also arise. B
and C, therefore, may file a suit jointly as plaintiffs against A for damages.

b. Joinder of defendants: Order 1 Rule 3

Rule 3 provides for joinder of defendants. It states that all persons may be joined in one suit
as defendants if the following two conditions are satisfied:
(i) the right to relief alleged to exist against them arises out of the same act or
transaction; and
(ii) the case is of such a character that, if separate suits were brought against such
persons, any common questions of law or fact would arise.
Illustration: there is a collision between a bus and a car. The bus belongs to B and the
car belongs to C. As a result of collision, A, a passer-by is injured. A may join B and
C as defendants in one suit for damages for injuries caused to him by negligence on
the part of both of them or anyone of them, since the case involves common questions
of fact arising out of the same act, collision of two vehicle

Necessary and Proper parties

● A necessary party is one whose presence is indispensable to the constitution of the

suit, against whom the relief is sought and without whom no effective order can be
passed
 A proper party is one in whose absence an effective order can be passed, but whose
presence is necessary for a complete and final decision on the question involved in the
proceedings.
● In other words, in absence of a necessary party no decree can be passed, while in
absence of a proper party a decree can be passed so far as it relates to the parties
before the court. His presence, however, enables the court to adjudicate more
effectively and completely.

● Thus, in a suit for partition, all sharers are necessary parties. Similarly, a purchaser of
property in a public auction is a necessary party for a declaration to set aside the said
public auction. Likewise, in an action against selection and appointment by an
authority, candidates who are selected and appointed are directly affected and,
therefore, they are necessary parties.

A subtenant is only a proper party in a suit for possession by the landlord against his
tenant. Grandsons are proper parties to a suit for partition by sons against their father.

Non-joinder or misjoinder of parties: Order 1 Rule 9

● Where a person, who is a necessary or proper party to a suit has not been joined as a
party to the suit, it is a case of non-joinder.
● If two or more persons are joined as plaintiffs or defendants in one suit in
contravention of Order 1 Rule 1 and 3 respectively and they are neither necessary nor
proper parties, it is a case of misjoinder of parties.

General Rule: a suit cannot be dismissed only on the grounds of non-joinder or misjoinder of
parties.
● This rule does not apply in case of non-joinder of a necessary party.

If the person who is likely to be affected by the decree is not joined as a party in the suit or
appeal, the suit or appeal is liable to be dismissed on that ground alone.

But in B. Prabhakar Rao v. State of A.P. (1985 Supp SCC 432), where all the affected persons
had not been joined as parties to the petition, and some of them only were joined,the Hon’ble
SC took the view that the interests of the persons who were not joined as parties were
identical with those persons who were before the court and were sufficiently and well
represented. Therefore the petition was not liable to be dismissed on that ground.