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I NSTI TUTI ON OF SUI T-SECTI ON 26

I NTRODUCTI ON: (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.
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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.
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PARTI ES TO SUI TS- (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)


1
Assan v. Pathumma
2
Ram Gopal v. Ram Sarup


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

3
Shyam Behari Mal vs Maha Prasad And Ors


6. If the plaintiff is doubtful as to from whom he can redress, then he can join them as
defendants.
Eg: A libel appeared against the plaintiff in a newspaper. Here the plaintiff shall include
the proprietor, the editor and the publisher as defendants as they are jointly and severally
liable for the publication.
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.
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i) NECESSARY AND PROPER PARTI ES:
A necessary party is one in whose absence no order can be made effectively; 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.
Two test have been laid down for determining the question whether a particular party is a
necessary party to a proceeding.
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i) There must be a right to some relief against such party in respect of the matter
involved in the proceeding in question; and
ii) It should not be possible to pass an effective decree in absence of such a party.
Thus in a suit for partition, all sharers are necessary parties. The grandsons are proper parties to a
suit for partition by sons against their father.
In land acquisition case, the beneficiary is a proper party whereas the Government and the
claimant are necessary parties.
i) NON-J OI NDER OF PARTI ES: RULE 9

A non-joinder occurs when a party to the dispute is not joined in a suit. The suit will fail if a
party who is necessary to the dispute is not joined in a suit. 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
5
Benares Bank Ltd v. Bhagwan Das


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. Non-inclusion of a party whose presence is necessary for
adjudicating the dispute is called Non-Joinder. So whenever a plaint is filed to move a suit, the
plaintiff must take all earnest efforts to add such parties who are necessary to the suit. This will
avoid unnecessary delays in the suit.

But In B.P.RAO V. STATE OF A.P
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, where all the affected persons had not been joined as parties
to the parties to the petition, and some of them only were joined, 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, the
petition was not liable to be dismissed on that ground.

Similarly, no decree or order under section 47 of the code can be reversed or substantially varied
in appeal, interalia on account of any misjoinder or non joinder of parties, not affecting the
merits of the case or the jurisdiction of the court, provided that such party is not a necessary
party.
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i) MI S-J OI NDER OF PARTI ES

Adding or the presence of a party who is unwanted or unnecessary to the proceedings is called
Mis-Joinder of Party. However no suit shall be defeated by reason of mis-joinder of a party.
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This is dealt within Order 1 Rule 9 of CPC.

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. If the
objections are not raised as stated above, it shall be deemed to have been waived.




6
AIR 1986 SC 210
7
lakshmishankar v. Asharam(1993) 3SCC 49
8
Jagan nath v. Jaswant SinghAIR 1954 SC 210


ii) STRI KI NG OUT, ADDI NG OR SUBSTI TUTI NG PARTI ES: RULE 10
Adding or substituting plaintiffs;
a) If after filing suit, 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, as prayed for an application for addition
or substitution of the plaintiff can be made.
b) The object underlying this provision is to save honest plaintiffs, believing bona fide in the
maintainability of their claims being non suited on a mere technical ground
9
. To bring a
case within this subrule,two conditions must be satisfied;
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i) The suit must been filed in the name of a wrong person as plaintiff by a bonafide
mistake;
ii) The substitution or addition of the plaintiff is necessary for the determination of
the real matter in dispute.

I LLUSTRATI ON:
C agent of A, under a bonafide mistake files a suit against B in his own name. 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.
11
No person can be added as plaintiff without his
consent.
12


STRI KI NG OUT OR ADDI NG PARTI ES:
Sub rule (2) of Rule 10 empowers that court to add any person as a party to the suit on either
ground:
1. Such person ought to have been joined as a plaintiff or a defendant and is not so joined;
2. Without his presence, the question involved in the suit cannot be completely decided.
13




9
Koman v. Moolacheri AIR 1935 Mad 95
10
R 10(1);Razia begum v. Anwar Begum
11
Ramesh v. Municipal corp. of Bombay 1992 2 SCC524
12
R 10(3)
13
Ramesh v. Municipal corp. of Bombay(supra)


EFFECT :
Where any person is added as defendant in the suit, as regards him, the suit shall be deemed to
have been instituted from the date he is joined as a party.
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Where a defendant is added, the plaint shall be amended and amended copies of the summon and
the plaint must be served on the new defendant.
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REPRESENTATI VE SUI T: (RULE 8 AND 8A OF ORDER 1)

When some persons represents another persons interested in filing a suit, it is called
representative suit. When in a dispute several persons are interested, it can be agitated in a court
of law by way of representative suit. This is dealt with under Order 1 Rule 8 of CPC. This rule is
an exception to the general rule that all persons interested should be party to the suit.
As per Order 1 Rule 8 of CPC, where there are numerous persons having same interest in one
suit, one or more of such persons may sue or be sued on behalf of all persons interested with the
permission of the court.

Essential Conditions
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There are certain things which must be needed for a representative suit. They are as follows:
1. There must be numerous number of parties
2. The interest of all parties must be the same
3. The court should give permission
4. 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 matter can be determined in a single trial. It may be clarified that the numerous
persons may not have same cause of action or same transactions. What is required is the same
interest between parties to the matter.
There are some other things also which can be noted. The further proceedings of representative
suit is dealt with in Order 1 Rule 8 sub rules 2 to 6 of CPC. The Court shall give notice at the

14
RULE 10 (5)
15
Rule 10(4)
16
Goundar v. Goundar (supra)


expense of the plaintiff to all interested 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. Any abandonment of claim in such suit, withdrawal and compromise has to be made
known to the parties. The decree passed in a representative suit shall be binding on all persons.

COMPROMI SE I N REPRESENTATI VE SUI T:
Compromise between the defendant and the plaintiff is allowed in a Representative suit only
with the permission of the Court.
APPEAL AGAI NST REPRESENTATI VE SUI TS:
If a person is under Representative Suit without his consent, then he can file an appeal against
the decree of the court in the Representative Suit. The object of the representative suit is to save
expenses and time and to avoid multiplicity of suits.
In T.N. Housing Board v. Ganapathy,
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residential buildings were allotted by the Housing Board
to the applicants who belong to low income group. After settlement of price, excess demand was
made by the board. The allottees challenged the demand by filing a suit in a representative
capacity. It was contended that such a suit in a representative capacity was not maintainable as
separate demand notice were issued against the allottees , giving rise to separate causes of action,
Rejecting the contention the Supreme Court held that all of them had the same interest and
therefore the suit was maintainable.
Kalyan Singh v. Chhoti
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, For a representative suit , the courts permission under Order 1, Rule 8
CPC is mandatory.
iii) J OI NDER OF CAUSES OF ACTI ON:
1. Order 2, Rule 3 of the Civil Procedure Code relates to joinder of causes of action.
i) A plaintiff may unite in the same suit several causes of action against the same
defendant/the same defendant jointly.

17
(1990) 1 Scc 608
18
AIR 1990 SC 396


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.
2. Order 2, Rule 4 No cause of action shall, unless with leave of the court, be joined with a
suit for the recovery of immovable property.
The Rule 3 of Order 2 deals with the joinder of cause of action. 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.
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Facts alleged by the defendants are not the cause of action. A suit consists of parties namely
plaintiff and defendant. The joinder of parties involves the joinder of causes 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.
iv) J OI NDER OF CLAI MS: RULE 4 -5
Rule 4 and 5 provide for joinder of claims.Rule 4lays down that in a suit for the recovery of
immovable property, a plaintiff is not entitled,without the leave of the court, to join any claim,
except-
a) Claims for mesne profits or arrears of rent in respect of the property claimed or any part
thereof;
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.
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. This rule deals with the joinder of
claims. 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. The leave of the
Court must be first obtained to join the claims with the claim for recovery of immovable property

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7 Bom.LR 925


except as prescribed in rule. No leave is necessary where the claims are joined in which the relief
sought is based on the same cause of action.
In case of a suit for possession of immovable property and mesne profits, a claim for damages
for period subsequent to suit can be joined in a proper case.
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Rule 5 of the Order 2 provides that no claim by or against an executor, administrator or heir shall
be joined such with claims by or against him. 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 husbands executors to recover certain ornaments forming part of
her stridhana and her share in her husbands estate in the same suit.
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v) OBJ ECTI ON FOR MI SJ OI NDER OF CAUSES OF ACTI ON: RULE 7
Rule 7 of order 2,provides the ground for objection on the ground of mis joinder of causes of
action. When in a suit, two or more cause of actions are joined together which ought to have not
been joined, the suit is bad for misjoinder of cause of action.
Where five plaintiffs contract separately to sell cotton ,though to the same defendant and if they
all join in one suit for damages for breach of the five contracts, it is misjoinder of plaintiffs and
cause of action.
A petition for divorce against the wife on the ground of adultery and a claim for damages against
the adulterer cannot be combined.
An objection as to mis joinder of causes of action should be taken at the earliest, if not taken in
the Court of first instance, be deemed to be waived.
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Where an objection as to mis joinder is
taken in the written statement but not pressed, it cannot be taken at the later stage.


20
ILR (1946)C 411
21
20 IC 533
22
AIR1932Bom595
23
AIR 1955 ALL 361