1. It is relevant to mention here to make out that what is meant that necessary
Party?
In this regard it is to submit that the true meaning of Necessary Party is “TO AN ACTION IS ONE WITHOUT WHOSE PRESENCE A SUBSTANTIAL DECREE CANNOT BE MADE” a party without impleading whom, a claim cannot be legally settled by court. (Order 31 Rule 13(1) of Code of Civil Procedure. Actions in equity, Proper parties are those without whom a substantial decree may be made, but not a decree which shall completely settle all the questions which may be involved in the controversy , and conclude the rights of all persons who have any interested in the subject matter of the litigation.; while necessary parties are those without whom no decree can be effectively made.( Law of Lexicon Page 1287)
JOINDER OF PARTIES: the joining of several parties as plaintiffs or Defendants in the same suit or action. The joining of all of or any of those persons as plaintiffs or defendants in whom the right to any relief is alleged exist, or who is alleged to posses any interest in the subject matter of litigation or who in the view of the court, is a proper or necessary party for the adjudication.( Order 1 Rule 6 of Code of Civil Procedure)
2. Order 1 Rule 10 of Code of Civil Procedure enables the court to add any person as party at any stage of the proceedings, if the person whose presence before the court is necessary in order to enable the court to effectively and completely adjudicate upon and settle all the questions involved in the suit. Avoidance of multiplicity of proceedings is also one of the objects of said provision. (Swamiji of Mutt, represented by his power attorney Holder, filed suit for partition. During pendency of suit Swamiji Died. Successor of the Mutt filed I.A.366/93 to implead him as plaintiff, as the power of attorney Holder of previous Swamiji has played fraud and sold way the property of Mutt without any authority. Purchasers claiming rights in the suit property filed I.A.586/90 to be impleaded as successors after the death of Previous Swamiji. Court below impleaded Successor of Mutt as 81st defendant and purchasers as plaintiffs 2 to 5. CRP 1456/95 by Successor of Mutt and CRP 1350/95 by purchasers. Held Successor of the Mutt has challenged the alienations made by power of attorney Holder, Successor of the Mutt and the persons, who purchased the property of the Mutt from power of attorney Holder, are necessary and proper parties without whose presence adjudication of title cannot be made. Question of impleading power of attorney Holder in the place of previous Swamiji does not arise, as the power of attorney has come to an end after the death of executant. Lower court went wrong in directing successor of Mutt to be impleaded as 81st defendant and purchasers as plaintiffs 2 to 5. Successor of Mutt ought to have been impleaded as Successor of Plaintiff and purchasers as defendants. Lower court shall permit parties to carry out amendments in the light of order passed. Revision Petitions partly allowed.) Reported in ALT (1) 2003 at 395.
3. ORDER 1 RULE10 Impleading application -By the revision Petitioners to
Implead themselves as defendants in a pending suit for declaration rejected by the
Trial Court--On facts, Held-On an application under Order 1 Rule 10 Court is
Required to investigate the fact that the applicant should be necessary to enable the
Court to effectually and completely to adjudicate upon and settle all the questions
involved in the suit. And the Court has to find out that the impleadment is
Necessary to avoid multiplicity of proceedings--Since the Trial Court has
Completely Over-looked these facts -order of the Trial Court is set aside.
4. What is required to be investigated when an application under Order 1 Rule 10 of the Code of Civil Procedure is filed before the Court is "whether the presence of a person before it may be necessary in order to enable the court to effectually and completely adjudicate upon and settle all the questions involved in the suit."The Suit of the plaintiff is for a Declaration that they are the exclusive owners of the temple and have exclusive archakship rights. On the other hand, the impleading applicant also claims right over the temple and archakship. Under the circumstances, the presence of the impleading applicants is necessary to completely adjudicate the nature of the rights of the parties over a temple and archakship. If they are not ordered to be imp leaded, they have to file another suit for declaration of their Rights which would necessarily mean there would be multiplicity of proceedings. Hence, they are both necessary and proper parties to the suit.
5. In my view, the Trial Court has totally misdirected about the scope of Order 1 Rule 10 of the Code of Civil Procedure. What is required to be investigated when an application under Order 1 Rule 10 of the Code of Civil Procedure is filed before the Court is "whether the presence of a person before it may be necessary in order to enable the Court to effectually and completely adjudicate upon and settle all the questions involved in the suit". The Trial Court has not applied its mind to this aspect of the matter. It has proceeded to investigate the merits of the claim made by the impleading applicants. That stage will reach only when the applicants are
Impleaded and during the final hearing of the matter while adjudicating their rights.
6. necessary party . a person or entity whose interests will be affected by the outcome of a lawsuit, whose absence as a party in the suit prevents a judgment on all issues, but who cannot be joined in the lawsuit because that would deny jurisdiction to the particular court (such as shifting jurisdiction from a state to federal court). In this rare technical situation, a necessary party who is not in the suit differs from an "indispensable party," who must be joined if the lawsuit is to proceed, and from a "proper party" who could be joined but is not essential.
7. deals with permissive joinder of parties. The plaintiff has the option whether to join a party if the tests of Rule 20 are met. Rule 10 of Order 1 applies to joinder of both plaintiffs and defendants. It creates two tests for joinder. 1) There must be some question of law or fact common to all parties which will arise in the action. 2) There must be some right to relief asserted on behalf of each of the plaintiffs and against each of the defendants, relating to or arising out of a single transaction or occurrence or series of transactions or occurrences. These tests are cumulative and both of them must be satisfied to permit joinder. The purpose of Rule is to promote trial convenience and expedite the final determination of disputes, thereby preventing multiple lawsuits.
8. Impleader seeks to assert a claim against someone who is not already a party to the action. It must involve a transfer of liability based on the plaintiff's original claim. Impleader of a third party because he is directly liable to the plaintiff in the original action is forbidden. E.g., a defendant sued for negligence cannot implead a third party whose negligence was totally responsible for plaintiff's injury.
9. Rule 10(2) of Order 1 makes very generous provision for impleading third parties and for assertion of claims on all three sides of the resulting lawsuit. While a great deal is thus procedurally proper, the limitations of jurisdiction do not always permit claims to be freely asserted.
10. The standards that a court should apply in determining whether a lawsuit should go forward in the absence of a necessary party. It consists of a four part test. (1) the court must determine whether "a judgment rendered in the person's absence might be prejudicial to him or those already parties" (2) Whether the court can reduce or eliminate prejudice by "the shaping of relief or other measures." (3) whether the judgment rendered without the outsider will be "adequate." (4) the court must consider the costs to the plaintiff of a dismissal for nonjoinder.
11. The Apex Court of India in Ramji Dayawala & Sons (P) Ltd. vs. Invest Import – 1981 (1) SCC 80, reiterated the classic definition of ‘discretion’ by Lord Mansfield in R. vs. Wilkes – 1770 (98) ER 327, that ‘discretion’ when applied to courts of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague, and fanciful, ‘but legal and regular’. We may now give some illustrations regarding exercise of discretion under the said Sub-Rule.
12. The government enjoys no immunity in so far as civil suits are concerned. If the government issues a notification, against which the plaintiff chooses to file a suit, the government shall also be a necessary party. In suits that are filed against a public officer, for damages or for any other relief, in respect of an act done by him in official capacity, the government will also be a necessary party.
13. In General Manager, South Central Railway, Secunderabad v. AVR Siddhantti, there was a non-joinder of parties. The plaintiff claimed relief against the Railways by impleading it through its representatives. The appellants contended that the employees who were likely to be affected by the decision had not been impleaded. Further, it was contended that since they were necessary parties, their non-joinder was fatal to the petition. However, the Supreme Court turned down this preliminary objection, holding that the relief was being claimed against the Railways only and it had been impleaded through its representative. Employees who were likely to be affected by the decision were at best proper parties. Their non-joinder could not be said to be fatal to the petition. This supports the proposition that a necessary party is one against whom relief is claimed. Those who are likely to be affected by the decision of the court do not automatically become necessary parties. The court may adjudicate upon their rights and liabilities, but their presence is not needed to pass an order. The purpose of any civil suit is to grant relief to the plaintiff whose civil rights have been infringed. Therefore, adjudication upon rights and liabilities of parties should be done only to that extent. However, anybody whose interest is likely to be directly affected by the decision of the court is a necessary party. But this means such a person should be called upon to bear the relief claimed by the plaintiff.
Therefore in the light of above case law, the Petitioner is necessary party to the entire proceedings of the suit and if he is impleaded as defendant to enable the Honourable court to effectually and completely to adjudicate upon all the questions involved in the suit, and that the Court has to find out that the impleadment of the petitioner as one of the defendant in the main suit and as Respondent in Injunction Petition filed by the Respondent to avoid multiplicity of proceedings.

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న్యాయం అందిచడంలో ఆలస్యానికి కారణం ఎవరు ?

ఈరోజు మనం న్యాయ వ్యవస్థను గమనించినట్లైతే న్యాయం సకాలంలో జరగకపోవడానికి కారణం న్యాయవాడులా లేక న్యాయ వ్యవస్థలో లోపలా గమనించాల్సిన అవరం ఉన్నది . ప్రభుత్వ పనితీరులో లోపం ,న్యాయాధికారుల నియామకం చాల ఆందోళన కలిగిస్తున్నది . కనీస అవగాహనా రాహిత్యం మనం గమనించవచ్చు . న్యాయాధికారుల నియామకాలలో మార్పులు చేయాల్సిన అవసరం ఎంతైనా వున్నది .న్యాయ వ్యవస్థ పనితీరు ప్రతిరోజూ ప్రస్నార్త్య్హకమైపోతుంది . దీనికి న్యాయ వ్యవస్థతో సంభందమున్న ప్రతి వారు భాద్యత వహించాలి . క్రింది స్తాయి లో న్యాయం జరిగితే చాలావరకు కేసులు తగ్గిపోతాయి , కానీ క్రింది స్థాయి లో న్యాయాధికారులు న్యాయం చేయడానికి శ్రద్ధ చూపడంలేదు ఇది వాస్తవం ,ఈ విషయంలో ద్రుష్టి పెట్టాల్సిన అవసరం వుంది .

MEDICO LEGAL ASPECTS OF DEATH AND TRANSPLANTATION OF ORGANS

The Medico legal study of death comes within in the purview of Forensic thanatology (Thanatos= death; logos=science) Death occurs in two stages viz;(1) somatic, systemic, or clinical (2) cellular or molecular. The term death as commonly employed means somatic death. It is due to complete and irreversible cessation of the vital functions of the brain, heart and lungs. In somatic death, though life ceases in the body as whole, it persists in its component parts viz, the tissues and cells, which respond to chemical, thermal or electrical stimuli. It signifies loss of life in the component parts of the body, and it is accompanied by cooling, and changes in the eye, skin, muscles etc.Molecular death is generally complete within three to four hours of somatic death. Testing the response of skeletal muscles to electrical stimuli easily establishes if molecular death has set in or not.
Diagnosis of somatic or clinical death is not always easy in the following conditions;(1) soon after the death when the body is likely to be warm (2)suspended animation (3) coma following excessive doses of sedatives or hypnotics especially barbiturates, and (4) hypothermia particularly in the old.
The distinction between somatic and molecular death is importantly for two reasons ( 1) Disposal of the body; In rare instances, when the body cremated soon after somatic death, spontaneous movements of the hands and feet may occur on the funeral pyre and may give rise to the apprehension that the person was not actually dead but was prematurely disposed of, and (2) Transplantation; The visibility of transplantable organs falls sharply after somatic death- a liver must be taken within fifteen minutes, a kidney within forty five minutes, and a heart within a hour.
A person whose brain may have been irreversibly injured can now be kept alive by maintaining the circulation of oxygenated blood to the brain stem by artificial means.
There is no legal definition of death. For the purpose of transplantation, it is necessary to remove organs in as fresh a condition as possible. Therefore, it is desirable to remove organs when the process leading to death has become irreversible. When there is irreversible damage to the brain as shown by a flat ECG tracing for five minutes, the probability that useful brain function will be re-established is most unlikely and the person can be legally presumed to be dead. At this stage there can be no objection to the removal and preservation of organs for transplantation purposes.

EXPERT TESTIMONY-SCOPE AND RELEVENCY

When the Expert opinion testimony offered through the medium of a qualified witness, may be given concerning any subject relevant to the matters in issue, in which a person may become specially learned or skilled or acquire special proficiency , subject, to the qualification that an experts opinion cannot be received if it amounts to a conclusion of law. Expert witnesses may explain to the court and jury the machines, models; drawings exhibited and may point out their differences or the identity of the mechanical devices involved in their construction, and under they may be examined on and explain questions of art, mechanics, or science peculiar to their trade or profession.
Experts are entitled to give in evidence their opinion as to conclusions from the facts within the range of their specialties. The testimony of expert as to general scientific facts in issue. Such opinion testimony is admissible not only when scientific knowledge is required, but when experience and observation in a special calling give the expert knowledge of a subject beyond that of person of common intelligence and ordinary experience.
A witness possessing special skill or knowledge of the subject may state an opinion, where the facts are such that inexperienced persons are likely to prove incapable of forming a correct Judgment without the assistance of such opinion. The scope of such evidence extends to any subject in respect of which one may derive special knowledge by experience, when his knowledge of the matter in relation to which his opinion is asked in such, or so great that it will probably aid the Trier in the search for truth.
It will be safer to confine the testimony of witness to facts when ever its practical to do so and leave the jury to exercise their Judgment and experience on the proved fact. The rules admitting opinions of experts evidence are not to be necessarily extended but speaking generally expert testimony is admissible upon a matter regarding which there is not common knowledge, where the court or jury may be aided or educated by the expert views and opinions of men experienced in some particular art, trade, or business and profession, such testimony is not, on the other hand admissible on matters of common knowledge even though offered through the medium of witness having knowledge having superior knowledge.
The opinion of persons well versed in foreign law, or science, art, and for proving the identity of finger prints or hand writing is made relevant under the provisions of Indian Evidence Act. Such qualified persons are experts and are competent to depose as to their opinion on the disputed facts and questions. The reason behind the principle of admitting the facts in support of the opinion or contradicting the opinion tendered by an expert is that the opinion given by an expert to be reliable must be tested by Cross-examination.
When the court has to form an opinion of foreign law of science, art, or as to identity of handwriting or finger prints, the opinions upon that point of persons especially skilled in such subject are relevant factors. Such persons are called experts.

ACCESS TO JUSTICE

It is the duty to safeguard the rights of citizens of India, particularly those of the underprivileged. The vast majority of people of India lives in condition of extreme poverty and is denied access to justice. Quite a large number of them are ignorant and illiterate and unaware of their legal rights. These poor brethren are victims of social inequalities and are afraid to raise their hands and assert their rights. Such groups of exploited people live in bondage and unless a concerted effort is made to free them from economic captivity, the dream of social equality will remain unfulfilled. The legal system must play a positive role to translate this constitutional philosophy in to a hard reality.
We must painfully admit that our legal system has become notorious for its delay and expense. The fee of layers have sky rocketed. It is difficult even for a middle class man to engage a reasonably good layer to fight his case. The services of those at the top can be afforded only by rich and corporate bodies. Even when poor litigant is provided the services of a layer this imbalance of professional competence survives. Present day litigation is the delay in the dispensation of justice. This delay in disposal of cases is having a deleterious effect on the administration of justice. In the first place, delay breeds litigation. Many litigants come to court with unsustainable causes in the hope of extracting something from the other side by abusing the time consuming process. Secondly, the delay introduces frustration which soon results in disgust for the legal system. This has negative effect since it leaves a brooding since of injustice which has occasionally manifested in disrespect for the courts.
The decline in the prestige and image of the legal profession should be a cause for concern to everyone connected with the justice delivery system and it is high time that need to take hard look at where we have faltered and make a serious effort to repair the damage by taking coercive action. The profession has withstood onslaughts from eminent personalities.
If we are to uphold the pristine glory of the profession, we must ensure that members of the profession do not descend to levels which would adversely affect its reputation and dignity.
The members of the legal profession are being blamed even by our elected representatives for the inordinate delay in the disposal of cases.