RFA 8/2009 BEFORE THE HON’BLE MR. JUSTICE A.K. GOEL THEHON’BLE MR. JUSTICE N. KOTISWAR SINGH 1. This is an appeal preferred against the judgment and order dated 10.9.20 08 passed by the Court of Civil Judge, Nalbari in Money Suit No. 4 of 2007 where by the Court below had dismissed the money suit filed by the appellant for recov ery of an amount of Rs.12,57,343/- against the Defendants/respondents. The plaintiff appellant has assailed the judgment and order dated 10.9.2008 of t he learned Civil Judge on several grounds. Before we deal with the contentions r aised, we may refer to the facts in brief which may be relevant for the purpose of deciding this appeal. 2. As per the plaint, the plaintiff appellant who is the proprietor of M/s Ranjit Kalita, a proprietorship firm situated at Borjhar, Barama, in the Distric t of Nalbari, Assam is doing the business of supply of grocery items and dry rat ion as per supply order. The plaintiff appellant entered into an agreement on 8th November, 2000 with the Managing Director of Assam Govt. Marketing Corporation, which was impleaded as proforma defendant No. 4 in the money for supply of dry ration to Ist ASRF Batta lion located at Borjhar, Nalbari on receipt of supply order/indent from the Comm andant, ASRF as per approved rate. The plaintiff appellant after making agreement with the Managing Director of AGM C, communicated the said fact to the Deputy Director of Civil Defense, Assam, Be ltola, Guwahati by the Deputy General Manager of AGMC on the same day. 3. It is the case of the plaintiff appellant that after execution of the ag reement with the Managing Director of AGMC, the plaintiff received the supply or ders/indents from the Commandant, Ist ASRF, Borjhar for supply of dry ration in the name of Managing Director of AGMC from time to time which were duly supplied to them and a sum of Rs. 12,57,343/- was remain unpaid for the dry ration suppl ied from June, 1999 onwards on different dates. 4. It seems the plaintiff appellant had approached this Court under Article 226 of the Constitution of India, in WP (C) No. 2855/03 and also in WP (C) No. 5209 of 2005 whereby this Court directed the Respondent Defendants to examine th e matter and release payment. 5. The plaintiff appellant having not received the amounts due from the Def endants thereafter filed the present money suit for recovery of the amount due t o him from them. 6. The Defendants Nos 1, 2 and 3 in the suit filed their written statement. They stated that the suit is not maintainable and there is no cause of action t o file the suit. However, in their written statement they admitted the fact that the plaintiff wa s the agent of proforma defendant No. 4 for supply of dry ration to the personal of ASRF Bn. 1, Barjhar, Nalbari, Assam and that there is information from profo rma defendant about appointment of plaintiff as the agent of the proforma defend ant to supply dry ration to the Bn. ASRF. Other reply of the defendants may not be relevant for the determination of this appeal and hence not referred to. 7. The trial court framed the following issues for trial. 1. Whether there was any cause of action for the suit? 2. Whether the suit was maintainable in its present form? 3. Whether the suit was barred by limitation? 4. Whether the suit was bad due to mis-joinder and non-joinder of necessary parties? 5. Whether the plaintiff was entitled for any relief as prayed for? 8. The trail court decided the Issues No. 1 and 3 in favour of the plaintif f appellant. 9. However, the trial court decided the Issues No. 2 and 4 against the plai ntiff appellant and accordingly, against the Issue No. 5 and consequently, the s uit was dismissed. 10. While deciding the Issue No. 4 as to whether the suit was bad due to mis -joinder and non-joinder of necessary parties against the plaintiff, the learned Trial Court held that the plaintiff filed the suit to recover the money from th e defendant No. 1, Commissioner & Secretary, Department of Home (B), Govt. of As sam, defendant No. 2, Director General of Civil Defence, Beltola, Guwahati, defe ndant No. 3, Commandant, Ist ASRF Batallion, Borjhar, Nalbari. The Trial Court further observed that the plaintiff exhibited one unregistered d eed of agreement in between him and the MDAGMC and the plaintiff merely kept the Managing Director AGMC, Guwahati as proforma defendant though the plaintiff did not claim any relief in his plaint from the proforma defendant No. 4. Some of t he exhibits referred to were some demand letters for dry ration to the Manager A GMC seeking dry rations for the period from June 1999 to March 2000. The Trial C ourt referred to some other exhibits stated to be signatures of the Company Comm ander and some bills. The Trial Court without any further discussion then came to the conclusion that the suit is bad for mis-joinder and non-joinder of necessary parties and accordi ngly, decided the issue against the plaintiff. 11. The Trial Court while deciding the Issue No. 2, as to whether the suit w as maintainable in its present form referred to the uncertified photostat copies of the orders of the Hon’ble High Court passed in W.P.(C) No. 2855/2003 and WP (C) Case No.5209/05 and by holding that the plaintiff did not file the present s uit to recover his money from the proper person, MD AGMC, and the suit was held not maintainable in its present form and accordingly this issue was decided agai nst the plaintiff. Accordingly, the Trial Court dismissed the suit. 12. Being aggrieved, the plaintiff appellant has preferred this appeal again st the dismissal of his suit and has contended that the present suit does not su ffer from mis-joinder and non-joinder of necessary parties and the suit is main tainable in the present form and ought not have been dismissed. Before we decide on the contentions raised by the appellant, it may be apposite to refer to cert ain legal principles relating to mis joinder or non joinder of necessary parties in any suit. 13. As to who is a necessary party in a suit or claim is now well settled. A necessary party is one without whom no order can be made effectively, whereas, a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involve d in the proceeding. (See Udit Narain Singh Malpaharia v. Addl. Member, Board of Revenue, Bihar, 1963 Supp (1) SCR 676.) This was reiterated in State of Assam v. Union of India, (2010) 10 SCC 408, wher ein the Supreme Court held, 16. We respectfully agree with the observations made by this Court in Udit Nara in case and adopt the same. We may add that the law is now well settled that a n ecessary party is one without whom, no order can be made effectively and a prope r party is one in whose absence an effective order can be made but whose presenc e is necessary for a complete and final decision of the question involved in the proceeding. We may also profitably refer to the decision in Mumbai International Air port Private Limited v. Regency Convention Centre and Hotels Private Limited, (2 010) 7 SCC 417 wherein the Supreme Court held that, 15. A necessary party is a person who ought to have been joined as a party an d in whose absence no effective decree could be passed at all by the court. If a necessary party is not impleaded, the suit itself is liable to be dismissed. A proper party is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjud icate upon all matters in dispute in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, a gainst the wishes of the plaintiff......... The Supreme Court also examined the concept of necessary party from anot her perspective by devising the twin test to determine as to who is a necessary party in any suit. In Kasturi v. Iyyamperumal, (2005) 6 SCC 733, the Supreme Court held that, 7. In our view, a bare reading of this provision, namely, second part of Order 1 Rule 10 sub-rule (2) CPC would clearly show that the necessary parties in a su it for specific performance of a contract for sale are the parties to the contra ct or if they are dead, their legal representatives as also a person who had pur chased the contracted property from the vendor. In equity as well as in law, the contract constitutes rights and also regulates the liabilities of the parties. A purchaser is a necessary party as he would be affected if he had purchased wit h or without notice of the contract, but a person who claims adversely to the cl aim of a vendor is, however, not a necessary party. From the above, it is now cl ear that two tests are to be satisfied for determining the question who is a nec essary party. Tests are - (1) there must be a right to some relief against such party in respect of the controversies involved in the proceedings; (2) no effect ive decree can be passed in the absence of such party. 14. In the light of the above principles, we may now examine the case at han d. The plaintiff-appellant is the supplier of the dry ration to the Defendant No .3. In the written statement filed by the defendants it was admitted that the pl aintiff is the agent of the proforma defendant for supply of dry ration to the p ersonnel of the ASRF Bn., Barjhar, Nalbari, Assam (who are represented by the De fendant No. 3). It was also admitted that there was information from proforma de fendant about appointment of plaintiff as the agent of the proforma defendant to supply dry ration to the Bn. The Defendants thus were very much aware that the plaintiff was the agent of the proforma defendant. They were also aware that it is the plaintiff who was suppo sed to supply dry ration to the ASRF Bn. The Defendants in their written stateme nt in para No. 10 also had admitted to the supply of certain dry ration by the p laintiff and also making payment for certain supply of ration already done. Therefore, if at all supply of the dry ration was made to the personnel of the A SRF Bn. Barjhar, Nalbari, Assam (represented by the Defendant No. 3) as claimed by the plaintiff, obviously, the claim for payment for the ration supplied has t o be made against the Defendant no.3 either separately or jointly with other Def endants No. 1 and 2. The Defendants No.1 to 3 are primarily responsible for maki ng payment for the ration supplied to them. Therefore, the Defendants No. 1 to 3 are in fact the necessary parties against whim the plaintiff has to make the cl aim for payment and without whom no suit can be filed for recovery of any amount and no effective order can be passed in favour of the plaintiff. By applying the aforesaid principle laid down by the Supreme Court, as the plain tiff is not claiming any relief against the Assam Government Marketing Corporati on, it is not a necessary party but merely a proper party. It being the Principa l of the Plaintiff, is a party whose presence would enable the court to complete ly, effectively and adequately adjudicate upon all matters in dispute in the sui t, and not the person in favour of or against whom the decree is to be made. The Trial Court however, unmindful of the well laid down principles regarding th e issue of necessary party , held the Assam Government Marketing Corporation to be a necessary party, though the plaintiff had made no claim against it and it would be merely a proper party. The Trial Court also observed that there was no agreement nor contract paper bet ween the plaintiff and defendants No. 1, 2 and 3 which in our view is not releva nt for deciding the issue, in as much as the defendants have admitted in their w ritten statement that plaintiff as the agent of the proforma defendant had suppl ied the dry ration to all locations except B & C company. Therefore, the is ue, whether there is any agreement or contract between the plaintiff and the def endants No. 1, 2 and 3 is not relevant for the purpose of deciding the issue of mis-joinder or non-joinder of necessary party. 15. Next, we will consider the decision of the Trial Court to the effect tha t the suit is not maintainable in its present form. The Ld. Civil Judge decided the said issue against the plaintiff primarily on the ground that the plaintiff did not file the present suit to recover his money from the proper person, i.e., the Assam Government Marketing Corporation. It is not understood as to how the plaintiff is to make the claim for payment of money from the Assam Government Ma rketing Corporation for the ration supplied to the Defendant No.3 unless it is t he plea of the defendants that the money had been already paid to the Assam Gove rnment Marketing Corporation as the approved supplier for the ration supplied by its agent. In that event, the plaintiff as the agent has to make the claim for payment from its Principal in which case, the Assam Government Marketing Corpora tion would necessarily become a necessary party. However, it is not the case of the defendants that the money for the ration supplied has been already paid to A ssam Government Marketing Corporation from whom the plaintiff is to make his cla im. 16. In view of all the necessary parties are impleaded and the discussion an d reasons given above, we are of the opinion that the suit filed by the plaintif f appellant does not suffer from any mis-joinder or non joinder of necessary par ty. Consequently, we also hold that the suit is maintainable in its present form . Accordingly, we are of the opinion that the suit should be tried in accordance with law. 17. For the reasons indicated above, we allow the appeal and the set aside t he judgment and order dated 10.9.2008 to the extent indicated above and the matt er is remanded for fresh decision on merits in accordance with law. The written statement filed by the defendants will be taken into account and the defendants will be allowed to lead evidence on not more than three oppo rtunities. The learned Trial Court may decide the suit, as far as possible, with in six months from the date of appearance of the parties. The parties may appear before the Trial Court on 23.12.2011.