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INSTITUTION OF SUIT-SECTION 26

INTRODUCTION: (ORDER 4, RULE 1 & 2) SECTION 26 of the Civil Procedure Code says that every suit must be instituted by presentation of a plaint or in other prescribed manner. In every plaint, the facts must be proved by affidavits. Plaint is a private memorial submitted to court in writing in which the person presents his cause of action. Only the person who has got cause of action or his authorized representative can institute a suit.1 Suit must always be instituted by the presentation of the plaint only, and hence any civil proceeding commenced by means of an application or otherwise does not become a suit. As per Order 4, Rule 1, the plaint must be submitted in duplicate to the court. Further every plaint must comply with the rules contained in Order 6 and 7.The plaint must show in what capacity the plaintiff sues the defendant. While submitting the plaint, the Court fee for the service of the plaint along with the summons must be paid. As per Rule 2 of Order 4, the particulars of every suit must be entered in the court register called ‘’Register of civil suits’’. The entries are serially numbered in every year according to their order of admission of plaints.2 PARTIES TO SUITS- (ORDER 1, RULE 1 TO 13) For institution of a suit, there must be two parties, a subject in dispute, cause of action and demand of relief. A suit is instituted by the presentation of a plaint to the court. The plaint should set out the name of the plaintiff,(if there are more than one plaintiff, the names of every plaintiff) and the name of the defendant(and if there are more than one defendant, the names of every defendant)

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Assan v. Pathumma Ram Gopal v. Ram Sarup

Promissory notes. 3 Shyam Behari Mal vs Maha Prasad And Ors . 1. several persons may be joined as Defendants: 1. may be joined as defendants. 5. severally or in the alternative. The right to relief arises out of the same act or transaction. any common question of law and fact would arise. If such persons brought separate suits any question of law or fact may arise. RAMANI KANTA. then the court may order separate trials.i. making his co sharers as co defendants who refuse to join in the suit as plaintiffs. 4. i. 3. A assaults B and C simultaneously. JOINDER OF DEFENDANTS: RULE 3 In the following cases. then it may not be joined in the same suit. Act including parties to bills of exchange. However if the jointer of plaintiffs may cause delay of the suit. If separate suits are brought against such persons. JOINDER OF PLAINTIFFS: RULE 1 Under the following conditions. All the defendants sued jointly need not be interested to all the reliefs claimed in any suit. 2. B and C may join as plaintiffs in one suit for damages against A for the tortuous act since the above conditions are fulfilled. 3. then the court may order separate trial of the suit. where the right to relief exists in each plaintiff whether jointly. 2. Hundies. The right to relief arises out of the same act or transaction or series of acts and transactions. Illustration. the court held that one co-owner can sue for the entire rent. If any right to relief exists against them whether jointly or severally or in the alternative. all the persons may be joined as plaintiffs:3 1. The persons who may be represented in a suit of this nature need not have the same cause of action. An altercation takes place between A on the one hand and B and C on the other. In PRAMADA NATH V. If the joinder of the defendants would delay the trial of the suit.

Two test have been laid down for determining the question whether a particular party is a necessary party to a proceeding. all sharers are necessary parties.6. The grandsons are proper parties to a suit for partition by sons against their father. The persons who are going to be affected by the pleadings or outcome of the suit has to be joined in the suit. Order 1 Rule 7 of 4 AIR 1959 Raj 17 Benares Bank Ltd v.5 i) There must be a right to some relief against such party in respect of the matter involved in the proceeding in question. Eg: A libel appeared against the plaintiff in a newspaper. In land acquisition case. a proper party is one in whose absence an order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceedings. Bhagwan Das 5 . i) NON-JOINDER OF PARTIES: RULE 9 A non-joinder occurs when a party to the dispute is not joined in a suit. the beneficiary is a proper party whereas the Government and the claimant are necessary parties. The suit will fail if a party who is necessary to the dispute is not joined in a suit. The Owner of land is entitled to file one suit against all persons who have trespassed on it as he has the right to recover the plot whole and entire and not in bits and fragments. and ii) It should not be possible to pass an effective decree in absence of such a party. then he can join them as defendants. Thus in a suit for partition. the editor and the publisher as defendants as they are jointly and severally liable for the publication.4 i) NECESSARY AND PROPER PARTIES: A necessary party is one in whose absence no order can be made effectively. If the plaintiff is doubtful as to from whom he can redress. Here the plaintiff shall include the proprietor.

7 i) MIS-JOINDER OF PARTIES Adding or the presence of a party who is unwanted or unnecessary to the proceedings is called Mis-Joinder of Party. Similarly.P6. Jaswant SinghAIR 1954 SC 210 . Order 1 Rule 13 of CPC says that any objections as to non-joinder or misjoinder of parties shall be taken at the earliest possible opportunity and in all cases before issues are settled.P. interalia on account of any misjoinder or non joinder of parties. Asharam(1993) 3SCC 49 8 Jagan nath v. where all the affected persons had not been joined as parties to the parties to the petition. However no suit shall be defeated by reason of mis-joinder of a party. But In B. it shall be deemed to have been waived. If the objections are not raised as stated above. This will avoid unnecessary delays in the suit. the Supreme Court took the view that the interest 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 and therefore.8 This is dealt within Order 1 Rule 9 of CPC. no decree or order under section 47 of the code can be reversed or substantially varied in appeal. provided that such party is not a necessary party. not affecting the merits of the case or the jurisdiction of the court. Non-inclusion of a party whose presence is necessary for adjudicating the dispute is called Non-Joinder. STATE OF A. the petition was not liable to be dismissed on that ground. the plaintiff must take all earnest efforts to add such parties who are necessary to the suit.RAO V. So whenever a plaint is filed to move a suit.CPC permits a plaintiff to join two or more defendants in case he is doubtful as to who should be proceeded against to get redress. and some of them only were joined. 6 7 AIR 1986 SC 210 lakshmishankar v.

Moolacheri AIR 1935 Mad 95 R 10(1). of Bombay 1992 2 SCC524 R 10(3) 13 Ramesh v.11No person can be added as plaintiff without his consent. ii) The substitution or addition of the plaintiff is necessary for the determination of the real matter in dispute. Municipal corp. The court can substitute the name of the principal A for that of the original plaintiff C. Such amendment may be allowed at any stage of the suit or even at the appellate stage and upon such terms and conditions as it think just. a) If after filing suit. of Bombay(supra) . To bring a case within this subrule.ii) STRIKING OUT. ADDING OR SUBSTITUTING PARTIES: RULE 10 Adding or substituting plaintiffs. Such person ought to have been joined as a plaintiff or a defendant and is not so joined.10 i) The suit must been filed in the name of a wrong person as plaintiff by a bonafide mistake. the question involved in the suit cannot be completely decided. as prayed for an application for addition or substitution of the plaintiff can be made.Razia begum v. Municipal corp. believing bona fide in the maintainability of their claims being non suited on a mere technical ground9. under a bonafide mistake files a suit against B in his own name. b) The object underlying this provision is to save honest plaintiffs. Anwar Begum 10 11 12 Ramesh v.two conditions must be satisfied. ILLUSTRATION: C agent of A. Without his presence.12 STRIKING OUT OR ADDING PARTIES: Sub rule (2) of Rule 10 empowers that court to add any person as a party to the suit on either ground: 1. the plaintiff discovers that he cannot get the relief he seeks without joining some other persons also as plaintiff or where it is found that some other person and not the original plaintiff is entitled for relief. 2.13 9 Koman v.

EFFECT : Where any person is added as defendant in the suit. one or more of such persons may sue or be sued on behalf of all persons interested with the permission of the court. What is required is the same interest between parties to the matter. it is called representative suit. the plaint shall be amended and amended copies of the summon and the plaint must be served on the new defendant. There are some other things also which can be noted.15 REPRESENTATIVE SUIT: (RULE 8 AND 8A OF ORDER 1) When some persons represents another persons interested in filing a suit. When in a dispute several persons are interested. This rule is an exception to the general rule that all persons interested should be party to the suit. Goundar (supra) . As per Order 1 Rule 8 of CPC. The interest of all parties must be the same 3. They are as follows: 1. The Court shall give notice at the 14 15 16 RULE 10 (5) Rule 10(4) Goundar v. This is dealt with under Order 1 Rule 8 of CPC. It may be clarified that the numerous persons may not have same cause of action or same transactions. The matter can be determined in a single trial. where there are numerous persons having same interest in one suit. Essential Conditions16 There are certain things which must be needed for a representative suit. The further proceedings of representative suit is dealt with in Order 1 Rule 8 sub rules 2 to 6 of CPC. There must be numerous number of parties 2. as regards him. The court should give permission 4. it can be agitated in a court of law by way of representative suit.14 Where a defendant is added. Notice must be issued to proposed parties The provision laid down in the law will save the precious time of the Court and cut down expense. the suit shall be deemed to have been instituted from the date he is joined as a party.

withdrawal and compromise has to be made known to the parties. Chhoti18. In T. i) A plaintiff may unite in the same suit several causes of action against the same defendant/the same defendant jointly. excess demand was made by the board. APPEAL AGAINST REPRESENTATIVE SUITS: If a person is under Representative Suit without his consent. Ganapathy. Order 2. After settlement of price. giving rise to separate causes of action. Rule 8 CPC is mandatory. The allottees challenged the demand by filing a suit in a representative capacity. Any abandonment of claim in such suit. It was contended that such a suit in a representative capacity was not maintainable as separate demand notice were issued against the allottees .N. Kalyan Singh v. Rule 3 of the Civil Procedure Code relates to joinder of causes of action.expense of the plaintiff to all interested persons. then he can file an appeal against the decree of the court in the Representative Suit. iii) JOINDER OF CAUSES OF ACTION: 1. The decree passed in a representative suit shall be binding on all persons. Any person who has an interest in the suit and on whose behalf or benefit the suit is instituted or defended may apply to make himself as a party to such suit. the court’s permission under Order 1. 17 18 (1990) 1 Scc 608 AIR 1990 SC 396 . COMPROMISE IN REPRESENTATIVE SUIT: Compromise between the defendant and the plaintiff is allowed in a Representative suit only with the permission of the Court. Housing Board v. For a representative suit . The object of the representative suit is to save expenses and time and to avoid multiplicity of suits. Rejecting the contention the Supreme Court held that all of them had the same interest and therefore the suit was maintainable.17 residential buildings were allotted by the Housing Board to the applicants who belong to low income group.

This rule deals with the ‘joinder of claims’. unless with leave of the court. However nothing in this rule shall prevent any party in a suit for foreclosure or redemption from asking to be put into possession of the mortgaged property.Rule 4lays down that in a suit for the recovery of immovable property.without the leave of the court. The Rule 3 of Order 2 deals with the joinder of cause of action. Rule 3 allows a plaintiff to unite in the same suit several causes of action against the same defendant and to order separate trials if necessary. The joinder of parties involves the joinder of causes of action. Rule 4 – No cause of action shall. Order 2. A suit consists of parties namely plaintiff and defendant. It declares that no claims other than those specified in three exceptions shall be joined without leave of the court with a suit for ‘recovery of immovable property’.LR 925 . 2. b) Claims for damages for breach of any contract under which the property or any part thereof is held and c) Claims in which the relief sought is based on the same cause of action. be joined with a suit for the recovery of immovable property. to join any claim. The leave of the Court must be first obtained to join the claims with the claim for recovery of immovable property 19 7 Bom. iv) JOINDER OF CLAIMS: RULE 4 -5 Rule 4 and 5 provide for joinder of claims. excepta) Claims for mesne profits or arrears of rent in respect of the property claimed or any part thereof.19 Facts alleged by the defendants are not the cause of action. a plaintiff is not entitled. The expression ‘cause of action’ means causes of action which are distinct upon the fact as stated in the plaint itself or as provided in the hearing.ii) Plaintiffs having causes of action in which they are jointly interested against the same defendant/the same defendants jointly may unite in the same suit such as jointly interested cause of action.

be deemed to be waived.20 Rule 5 of the Order 2 provides that no claim by or against an executor. two or more cause of actions are joined together which ought to have not been joined. if not taken in the Court of first instance. Where five plaintiffs contract separately to sell cotton .provides the ground for objection on the ground of mis joinder of causes of action. In case of a suit for possession of immovable property and mesne profits. administrator or heir shall be joined such with claims by or against him. the suit is bad for misjoinder of cause of action. When in a suit. The object of the rule is to prevent an executor or administrator from inter mingling the assets of his testator with his own estates. A Hindu women can sue her husband’s executors to recover certain ornaments forming part of her stridhana and her share in her husband’s estate in the same suit. 20 21 ILR (1946)C 411 20 IC 533 22 AIR1932Bom595 23 AIR 1955 ALL 361 . An objection as to mis joinder of causes of action should be taken at the earliest. A petition for divorce against the wife on the ground of adultery and a claim for damages against the adulterer cannot be combined. a claim for damages for period subsequent to suit can be joined in a proper case. it cannot be taken at the later stage.except as prescribed in rule. it is misjoinder of plaintiffs and cause of action.21 v) OBJECTION FOR MISJOINDER OF CAUSES OF ACTION: RULE 7 Rule 7 of order 2.though to the same defendant and if they all join in one suit for damages for breach of the five contracts.22 Where an objection as to mis joinder is taken in the written statement but not pressed. No leave is necessary where the claims are joined in which the relief sought is based on the same cause of action.