Judgment : The 1st respondent/plaintiff filed suit against the petitioners/defendants. The suit, after trial, having been dismissed, the plaintiff has filed first appeal. The appellant filed I.A.3, under Order 1 Rule 10(2) CPC to permit him to implead the proposed respondent as defendant No.3. The petitioners and the proposed respondent filed objections to I.A.3. The appellate court has allowed the impleading of the 2nd respondent, as defendant No.3, Aggrieved, the defendants have filed this writ petition. 2. Sri Rajeswara P.N, learned Advocate, appearing for the petitioners contended as follows: (i) The plaintiff failed to implead necessary parties despite the specific objection of nonjoinder of necessary parties having been raised in the written statement, based on which a specific issue was framed and the parties went to trial and the issue having been answered against the plaintiff, in the appeal filed, it is not permissible for the plaintiff to seek impleading of the additional defendant. (ii) The provision under Rule 10(2) of Order 1 CPC does not contemplate a situation where plaintiff fails to take steps during the pendency of the suit, to implead the party as an additional defendant, in the appeal. (iii) Allowing of I.A. No.3 and ordering the impleading of 2nd respondent is illegal and has occasioned failure of justice. 3. Sri C.Shankar Reddy, Learned Advocate, appearing for the 1st respondent, on the other hand, firstly contended that, the plaintiff was under a bonafide impression that, the execution of general power of attorney (‘GPA’ for short) by the defendants having been admitted, there was no requirement for impleading the GPA holder as a party to the suit. Secondly, the GPA was acted upon by execution of the agreement of safe dated 1`4.03.2004 and its revocation being after execution of the said agreement, the GPA holder was not impleaded in the suit. Thirdly, to avoid any technical defect, I.A.3 was filed to implead the 2nd respondent as defendant No.3 in the suit, whose presence will enable the court to decide the matter effectively. Learned counsel contends that, in the facts and circumstances of the case, the appellate court is justified in allowing I.A.3. 4. Thirdly, to avoid any technical defect, I.A.3 was filed to implead the 2nd respondent as defendant No.3 in the suit, whose presence will enable the court to decide the matter effectively. Learned counsel contends that, in the facts and circumstances of the case, the appellate court is justified in allowing I.A.3. 4. In view of the rival contentions and the record of the writ petition, which I have perused, the point for consideration is: Whether the appellate Court is justified in allowing I.A. No.3 and permitting the appellant to implead the 2nsd respondent as defendant No.3 in the suit? 5. Parties to the lis are related to each other. The petitioners are husband and wife. The 2nd petitioner is the sister of plaintiff. The 2nd respondent is the elder brother of the plaintiff. The suit property belongs to the petitioners. According to the plaintiff, the defendants constituted the 2nd respondent as their GPA holder by executing and registering a deed of GPA dated 10.12.1996, in pursuance of which, the 2nd respondent executed the agreement of sale dated 14.03.2004, in his favour, agreeing to sell the suit property and received Rs.3,30,000/-as advance, out of the agreed sale consideration amount of Rs.3,50,000/-. Contending that, he has been ready and willing to perform his part of the contract and that, the defendants in order to escape from the contractual obligation, revoked the GPA executed in favour of S. Nazeer Khan, under deed of revocation dated 18.10.2005, having got issued a notice dated 07.11.2005, demanding specific performance of the contract, the suit for specific performance of the contract was filed. 6. The defendants filed written statement interalia contending that, S. Nazeer Khan had fraudulently obtained the GPA, which they got revoked under the deed of revocation dated 18.10.2005 and the agreement of sale alleged to have been executed by S.Nazeer Khan in favour of the plaintiff as not binding on them and that, there is no contract for sale of the suit property in favour of the plaintiff. They also raised the plea that, the suit has to fail for non-impleading of the necessary party i.e., S.Nazeer Khan, who allegedly executed the agreement of sale. 7. Issues were framed on 03.06.2006, On 13.09.2007, an additional issue to the following effect was framed. Whether the defendants prove that the suit is bad for non-joinder of necessary party? 8. They also raised the plea that, the suit has to fail for non-impleading of the necessary party i.e., S.Nazeer Khan, who allegedly executed the agreement of sale. 7. Issues were framed on 03.06.2006, On 13.09.2007, an additional issue to the following effect was framed. Whether the defendants prove that the suit is bad for non-joinder of necessary party? 8. The plaintiff deposed as PW-1, examined one witness as PW-2 and Exs.P-1 to Ex.P-8 were marked. The 2nd defendant deposed as DW-1, one witness was examined as DW-2 and Exs.D-1 to Ex. D-20 were marked. The trial court has answered additional issue No.1 in the affirmative. It has held that, (i) in order to defeat the rights of the defendants, the plaintiff in collusion with S.Nazeer Khan have created fabricated document and the suit has been instituted. (ii) S.Nazeer Khan, the alleged GPA holder, who executed the agreement of sale in favour of the plaintiff is a proper and necessary party to decide the issues involved in the suit effectively and completely and in the absence of S.Nazeer Khan, the issues involved in the suit cannot be decided. (iii) It has been further observed that, no proper and convincing reason has been made out for not making S.Nazeer Khan as a party to the suit and that, the suit is bad for nonjoinder of necessary party. 9. In the impugned order, the appellate court has held that, the trial court ought to have impleaded S.Nazeer Khan as defendant in the suit, since the dispute raised could have been resolved in the presence of GPA holder. It has opined that, the presence of S.Nazeer Khan is very much necessary to resolve the dispute between the parties effectively and completely. 10. What parties are necessary parties is dependant upon the facts and circumstances of each case. The relevant provisions in the Civil Procedure Code can be found at Order 1 Rules 9 & 10. 11. Rule 9 provides that, no suit shall be defeated by reason of the mis-joinder or nonjoinder of parties, and the court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. 12. 11. Rule 9 provides that, no suit shall be defeated by reason of the mis-joinder or nonjoinder of parties, and the court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. 12. Sub-rule (2) of Rule 10 provides that, the court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. 13. The two conditions to be satisfied before a party is considered to be a necessary party are: 1. There must be a right to some relief against the party not joined, which means, no decree can be passed without affecting the right of the absentee party, and, 2. The presence of the absentee party should be necessary in order to enable the court to effectively adjudicate upon and settle all the questions involved in the suit. 14. As noticed supra, the petitioners in their written statement took specific defence that, the suit in the absence of S.Nazeer Khan is bad. A specific issue was raised with regard to said plea. Trial has taken place. The plaintiff did not take any steps to implead S.Nazeer Khan as defendant in the suit. The suit has been dismissed by answering the said issue also against the plaintiff. 15. In the affidavit in support of I.A.3, the appellant has stated as follows: “I submit that under the said circumstances in order to avoid any technical defects that may have arisen at the time of drafting the plaint and without prejudice to my claim the proposed defendant/proposed respondent is not a proper and necessary party in the suit. I have filed the annexed application.” Even in the appellate court also, the plaintiff has maintained that, without prejudice to his claim that, the proposed defendant/proposed respondent is not a proper and necessary party to the suit, the application for impleading was filed. 16. I have filed the annexed application.” Even in the appellate court also, the plaintiff has maintained that, without prejudice to his claim that, the proposed defendant/proposed respondent is not a proper and necessary party to the suit, the application for impleading was filed. 16. In NABA KUMAR HAZRA Vs. RADHESHYAM MAHISA, reported at AIR 1931 PC 229, the Privy Council had to deal with a similar situation. In the suit from which the appeal arose, the plaintiff had failed to implead co-mortgagors and persisted in not joining them despite the plea taken by the defendants that the co-mortgagors were necessary parties and in the end, it was urged on his behalf that the said co-mortgagors should be allowed to be impleaded before the Privy Council. In support of this plea, reliance was placed on the provisions of Order 1 Rule 9 of CPC. In rejecting the said prayer, it has been observed that, “they are unable to hold that the said Rule has any application to an appeal before the Board in a case where the defect has been brought to the notice of the party concerned from the outset of the proceedings and ;he had ample opportunity of remedying it in India.” 17. In the caswe of CHENTHIPERUMAL PILLAI CHANDTHANAMUTHU PILLAI VS. D.M.DEVASHAYAM, reported in 1956 TRA,CO 181 ((S) AIR V 43 C 64 Aug), it has been held as follows: “It is well-recognized rule of law that if inspite of objection raised at the proper time the plaintiff persists in the suit without joining the necessary parties, the suit has to be dismissed and that he cannot be allowed to remedy the defect in appeal”. 18. IN the case of ALI NAWAZ KHAN & ANOTHER VS. SMT. FARZANA KHATOON & OTHERS, reported in 2003 AIHC 463, suit for partition and separate possession was filed, wherein the defence was, the suit is bad for non-joinder of parties. The trial court held that, the suit is bad for non-joinder of proper and necessary parties. In the appeal, an application was made for impleading Observing that, steps were not taken for impleading during the pendency of suit, it has been held that, the application cannot be allowed, since the plaintiffs have to take the risk regarding maintainability of appeal against persons who were not parties to judgment and decree of trial Court. 19. In the appeal, an application was made for impleading Observing that, steps were not taken for impleading during the pendency of suit, it has been held that, the application cannot be allowed, since the plaintiffs have to take the risk regarding maintainability of appeal against persons who were not parties to judgment and decree of trial Court. 19. In the instant case, specific defence was taken in the written statements and a specific issue was raised with regard to the necessary party having not been impleaded/not finding a place in the array of parties. The plaintiff having chosen to proceed with the trial, cannot seek impleading of the party, in the appeal, since trial of the suit is complete. The consequence of addition would involve a de novo trial, which course of action is not normally permissible in an appeal. The court below without considering the matter in the correct perspective, by misdirecting itself and acting illegally has allowed I.A.3. For the foregoing discussion, the writ petition is allowed and the impugned order is quashed. However, it is made clear that, the appeal shall be decided in accordance with law, uninfluenced by the observations made herein, which are limited for consideration of the grounds urged against the impugned order. Contentions of both parties in the appeal is kept open for consideration. No costs.