PARTIES TO THE SUIT

FINAL DRAFT MADE BY-

ADITI CHANDRA (1806)

B.B.A., LL.B. (Hons.)

PROPOSAL SUBMITTED TO:

DR. MEETA MONINI

FACULTY OF CIVIL PROCEDURE CODE

Final draft submitted in the complete fulfilment for the course Civil
Procedure Code for the attaining degree of B.B.A., LL.B (Hons.).

AUGUST, 2019

CHANAKYA NATIONAL LAW UNIVERSITY, NYAYANAGAR-

MITHAPUR, PATNA 800001
 STATEMENT OF PROBLEM

Studying in detail the roles of the parties to the suit.

AIMS AND OBJECTIVES

The primary objective of this project report is to do a detailed study of different parties to the suit
and their rights and duties.

 To study the essentials of a suit with reference to the parties to the suit.
 To study in detail joinder, misjoinder and non-joinder of parties to the suit.

HYPOTHESIS

In this report, the researcher presumes that the both the parties are essential to the suit and the
suit cannot be proceeded with in absence of either of the parties.

RESEARCH METHODOLOGY

In this project Doctrinal Method of Research is used. Doctrinal Methods refer to Library
research, research or processes done upon some texts writings or Documents, legal propositions
and Doctrines, Articles, Books as well as Online Research and Journals relating to the subject.
This project is an intensive one so this method is sufficient to address the findings and to arrive
at concrete conclusi

2
 INDEX

DECLARATION ................................................................................................................ 4
ACKNOWLEDGEMENT .................................................................................................. 5
INTRODUCTION .................................................................................................................... 6
INSTITUTION OF SUIT: THE PROVISIONS UNDER THE CIVIL PROCEDURE CODE, 1908 ........... 7
PARTIES TO THE SUIT ......................................................................................................... 12
JOINDER, MISJOINDER AND NON-JOINDER OF PARTIES ...................................................... 13
CONCLUSION...................................................................................................................... 23
BIBLIOGRAPHY .................................................................................................................. 24

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 DECLARATION

I hereby declare that the work reported in the B.B.A., LL. B (Hons.) Project Report entitled
“PARTIES TO THE SUIT” submitted at Chanakya National Law University is an authentic record
of my work carried out under the supervision of Dr. Meeta Mohini. I have not submitted this
work elsewhere for any other degree or diploma. I am fully responsible for the contents of my
Project Report.

NAME OF CANDIDATE:

ADITI CHANDRA

CHANAKYA NATIONAL LAW UNIVERSITY, PATNA.

4
 ACKNOWLEDGEMENT

I have taken efforts in this project. However, it wouldn’t have been possible without the kind
support of many individuals and institutions. I would like to extend my thanks to all of them.

I thank my God for providing me with everything I required in completion of this project.

I am highly indebted to my faculty Dr. Meeta Mohini for her guidance and constant supervision
as well as providing necessary information regarding the project and also for her support in the
completion of this project.

I would like to express my gratitude towards my parents for their kind cooperation,
encouragement and guidance regarding this project.

Also I would like to thank my friends and batch mates who willingly helped me out in the
development of this project.

THANK YOU

NAME: ADITI CHANDRA

COURSE: B.B.A., LL.B. (HONS)

ROLL NO: 1806

SEMESTER: 5th

5
 INTRODUCTION

The basic aim of a legal system of a country is to impose duty to respect the legal rights
conferred upon the members of the society. The person making a breach of that duty is said to
have done the wrongful act. On the basis of nature and gravity of such wrongful acts, those are
separated under two categories: Public Wrong and Private Wrong. Public wrong is deemed to be
committed against the society and the Private wrong, against individuals. The gravity of the
former is greater than that of the latter. The first category is termed under the Law as ‘crime’
governed by the Criminal Laws (Substantive and Procedural) and the second category, as ‘civil
wrong’ governed by the Civil Laws.

The Code of Civil Procedure, 1908 is the procedural or the adjective law of India in civil matters.
Sections 26 and Sections 35-35B read with Orders I (Parties to the Suit), II (Framing of the Suit),
IV (Institution of the Suit), VI (Pleadings) and VII (Plaint) provide the procedural principles and
rules regarding institution of suits.1

The word ‘suit’ has wider application. There is a little difference between the suits under the
CPC 1908 and the other civil suits. This is under the CPC the suits is instituted by the
presentation of the plaint which has particular format and in other suits like the suit for divorce,
the same is instituted by mere presentation of the petition by or on behalf of either spouse.

In a civil suit, the presence of both the plaintiff, who files the suit, and the defendant, who is
sued, is necessary. In each case there are two categories; first one is the necessary party and the
other is proper party. A necessary party is one whose presence is indispensable to the
constitution of the suit, against whom the relief is sought and without whom no effective order
can be passed. A proper party is one in whose absence an effective order can be passed, but
whose presence is necessary for a complete and final decision on the question involved in the
proceeding.

The person who seeks a remedy in chancery by suit, commonly called a plaintiff, and theperson
against whom the remedy is sought, usually denominated the defendant, are the parties to a suit.

1
M.P.Tandon, ‘The Code of Civil Procedure’, (Allahabad Law agency, Faridabad, 2002).

6
 INSTITUTION OF SUIT: THE PROVISIONS UNDER THE CIVIL PROCEDURE CODE,
1908
Section 26(1), CPC says that every suit shall be instituted by the presentation of a plaint or in
such other manner as may be prescribed. Sub-section (2) provides that in every plaint, facts shall
be proved by affidavit. The procedural framework relating to the institution of a suit is give
below:

1. Preparing the plaint

2. Choosing the proper place of suing
3. Presentation of the plaint
1) Preparation of the Plaint:
‘Plaint’ is not defined in this Code. It may, however, be described as ‘a private memorial
tendered to a Court in which the person sets forth his cause of action, the exhibition of an
action in writing’. Order 7 is related to the format of Plaint. According to Rule 1 the
particulars to be contained in a plaint are:
o the name of the Court in which the suit is brought;
o the name, description and place of residence of the plaintiff;
o the name, description and place of residence of the defendant, so far as they can
be ascertained;
o where the plaintiff or the defendant is a minor or a person of unsound mind, a
statement to that effect;
o the facts constituting the cause of action and when it arose;
o the facts showing that the Court has jurisdiction;
o the relief which the plaintiff claims;
o where the plaintiff has allowed a set-off or relinquished a portion of his claim, the
amount so allowed or relinquished; and
o a statement of value of the subject matter of the suit for the purposes of
jurisdiction and of court-fees, so far as the case admits

Other rules regarding the contents of a plaint:

o In money suits the pliant shall state the precise amount of amount claimed (Rule
2).

7
 o Where the subject-matter of the suit is immovable property, the plaint shall
contain a description of the property sufficient to identify it, and in case such
property can be identified by boundaries or numbers in a record of settlement or
survey, the plaint shall specify such boundaries or numbers (Rule 3).
o Where the plaintiff sues in a representative character, the plaint shall show not
only that has an actual existing interest in the subject matter, but that he has taken
the steps (if any) necessary to enable him to institute a suit concerning it (Rule 4).
o The plaint shall show that the defendant is or claims to be interested in the subject
matter, and that he is liable to be called upon to answer the plaintiff’s demand
(Rule 5).2
o Where the suit is instituted after the expiration of the period prescribed by the law
of limitation, the plaint shall show the ground upon which exemption from such
law is claimed (Rule 6).
o Every plaint shall state specifically the relief which the plaintiff claims either
simply or in the alternative, and it shall not be necessary to ask for general or
other relief which may always be given as the court may think just to the same
extend as if it had been asked for. And the same rule shall apply to any relief
claimed by the defendant in his written statement (Rule 7).
o Where the plaintiff seeks relief in respect of several distinct claims or causes of
action founded upon separate and distinct grounds, they shall be stated as far as
may be separately and distinctly (Rule 8).
o Where the Court orders that the summons be served on the defendants in the
manner provided in rule 9 of Order V, it will direct the plaintiff to present as
many copies of the plaint on plain paper as there are defendants within seven days
from the date of such order along with requisite fee for service of summons on the
defendants (Rule 9).
a) Return of Plaint:
Rule 10 (1) says, ‘Subject to the provisions of rule 10A, the plaint shall at any stage of

2
A.N.Saha, ‘The Code of Civil Procedure’, Vol 2 (Premier Publishing Co., Allahabad,
2004).

8
 the suit be returned to be presented to the court in which the suit should have been
instituted.’
b) Rejection of Plaint:
According to Rule 11 the plaint shall be rejected in the following cases:—
 where it does not disclose a cause of action;
 where the relief claimed is undervalued, and the plaintiff, on being required by the court
to correct the valuation within a time to be fixed by the court, fails to do so;3
 where the relief claimed is properly valued, but the plaint is written upon paper
insufficiently stamped, and the plaintiff, on being required by the court to supply the
requisite stamp paper within a time to be fixed by the Court, fails to do so;
 where the suit appears from the statement in the plaint to be barred by any law;
 where it is not filed in duplicate;
 where the plaintiff fails to comply with the provision of Rule 9.
Provided that the time fixed by the court for the correction of the valuation or supplying
of the requisite stamp papers shall not be extended unless the court, for reasons to be
recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional
nature from correcting the valuation or supplying the requisite stamp papers, as the case
may be within the time fixed by the court and that refusal to extend such time would
cause grave injustice to the plaintiff.
According to Rule 12 where a plaint is rejected, the Judge shall record an Order to that
effect with the reasons for order. Rule 13 clarifies that the rejection of the plaint on any of
the grounds hereinbefore mentioned shall not of its own force preclude the plaintiff from
presenting a fresh plaint in respect of the same cause of action.
c) Amendment of Pleading of the plaintiff (Plaint):
The Court may at any stage at the proceedings allow either party to alter or amend his
pleadings in such manner and on such terms as may be just (Rule 17, Order 6).
d) Choosing the proper place of suing:
A defect of jurisdiction goes to the root of the matter and strikes at the authority of a

3
-http://www.legalservicesindia.com/article/2212/Institution-of-Suit-and-its-
Essentials.html

9
 court to pass a decree. A decree passed by the Court in such cases is a coram non judice.
So choosing the proper court is the next which depends on the contents of the pliant.
Section 9 of CPC has declared that the courts shall have jurisdiction to try all suits of a
civil nature excepting suits of which their cognizance is either expressly or impliedly
barred. The jurisdiction of a court is decided by the legislature; parties by the framing of
the plaint cannot interfere into the extent of this jurisdiction. They can choose one of
some of the courts having same jurisdiction. In Ananti v. Chhannu,the Court has laid
down the correct law on this point:
The Plaintiff chooses his forum and files his suit. If he establishes the correctness of his
facts he will get his relief from the forum chosen
2) Presentation of the Plaint: Commencement of the Suit:
Section 26 and Order 4 contain the provisions relating to the institution of a suit. Rule 1 of
Order 4 goes as:
(1) Every suit shall be instituted by presenting a plaint in duplicate to the Court or such
officer as it appoints in this behalf.
(2) Every plaint shall comply with the rules contained in Order VI and VII, so far as they are
applicable.
(3) The plaint shall not be deemed to be duly instituted unless it complies with the
requirements specified in sub-rules (1) and (2).
Section 26 provides that every suit shall be instituted by the presentation of a plaint or in
such other manner as may be prescribed. Order 4 Rule 1 lays down the procedure for
institution of suit; but does not speak of any ‘other manner’ for the purpose. The amendment
makes it clear that unless the plaint is filed in duplicate it will be deemed to be incomplete.
Sub-rule (3) has been inserted in order to curtail unnecessary adjournments for due
compliance of the provisions of sub-rules (1) and (2) after the filing of the plaint.
The plaint may be presented either by the affected person himself, or by his advocate or by
his recognized agent or by any person duly authorized by him. A proceeding which does not
commence with a plaint is not a suit within the meaning of Section 26 and Rule 1 of Order 4.

I. Time and Place of Presentation:

Generally, the presentation of a plaint must be on a working day and during the office hours.

10
However, there is no rule that such presentation must be made either at a particular place or
at a particular time. A judge, therefore, may accept a plaint at his residence or at any other
place even after office hours, though h is not bound to accept it. But if not too convenient, the
judge must accept the plaint, if it is the last day of limitation. Thereafter, the particulars of a
suit will be entered by the court in a book kept for the said purpose, called the Register of
Civil Suits. After the presentation, the plaint will be scrutinized by the Stamp Reporter. If
there are defects, the plaintiff or his advocate will remove them. Thereafter the suit will be
numbered.

II. Registration of Suits:

Rule 2 of Order 4 provides that the Court shall cause the particulars of every suit to be
entered in a book to be kept for the purpose and called the register of civil suits. Such entries
shall be numbered in every year according to the order in which the plaints are admitted.

11
 PARTIES TO THE SUIT
There are four essentials of a suit:

i. Opposing parties, i.e., parties to the suit;

ii. Subject-matter in dispute;
iii. Cause of action; and
iv. Relief

In a civil suit, the presence of both the plaintiff, who files the suit, and the defendant, who is
sued, is necessary. In each case there are two categories; first one is the necessary party and the
other is proper party. A necessary party is one whose presence is indispensable to the
constitution of the suit, against whom the relief is sought and without whom no effective order
can be passed. A proper party is one in whose absence an effective order can be passed, but
whose presence is necessary for a complete and final decision on the question involved in the
proceeding.
Where the number of plaintiff/defendant is one, no dispute arises regarding their representation;
but some uniform rules become mandatory if this number crosses this limit. Order 1 contains
these rules.

Order I Rule 3 provides who are the necessary parties in a Suit. A person who is not a party in
the proceeding is not bound by any judgment or decree as the order against him is in violation of
the principles of natural justice. There may be a party necessary, proper and/or improper,
therefore the concept of joinder, non-joinder and misjoinder of parties has always been very
relevant. Nearly a Constitution Bench of the Supreme Court in Udit Narain Singh Malpaharia Vs
Member, Board of Revenue Bihar, AIR 1963 SC 786, has explained as who are the necessary
parties and without whom the Suit shall not be maintainable. A necessary party is one without
whom no order can be made effectively. Proper party is one whose presence is necessary for a
complete and final decision. Suit fails for nonjoinder of necessary parties. A Constitution Bench
in U.P. Awas Evam Vikas Parishad V. Gyan Devi, AIR 1995 SC 724 reiterated the same view.
In Iswar B.C. Patel V. Harihar Behera, AIR 1999 SC 1341, the Apex Court observed that
question of joinder of parties involves joinder of causes of action. Objection should be taken
before trial court in order to provide opportunity to plaintiff to rectify the defect and only if even
then plaintiff persists in not impleading the party, consequences on non-joinder may follow.

12
 JOINDER, MISJOINDER AND NON-JOINDER OF PARTIES
JOINDER:

There is always a concern while filing a suit as to whether all the parties concerned have been
taken into account or not. Further, if any party is missed, can that party be joined in a suit at a
later point of time is another issue to be pondered upon. Fortunately, Code of Civil Procedure,
1908 comes to our rescue in order to provide a remedy for the same. Though the joinder of
parties rests upon the discretion of court, Order 1 Rule 1 or Order 1 Rule 3, as the case may be,
of Code of Civil Procedure, 1908 is to be read together with Order 2 Rule 3 and Order 2 Rule 6.

Order I Rule 1 of Code of Civil Procedure, 1908 states that:

 Who may be joined as plaintiffs

All persons may be joined in one suit as plaintiffs where—

(a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts
or transactions is alleged to exist in such persons, whether jointly, severally or in the alternative;
and

(b) if such persons brought separate suits, any common question of law or fact would arise.”

The provision clearly mentions two grounds upon which a party may be joined in a suit at a later
point of time as well. First, the party must have a right to claim a relief, either arising out of the
same act or same transaction or arising out of a series of acts or transactions upon which the suit
rests. Second, if a separate suit is filed, there would exist a common question of law or fact. It
should also be read that the two conditions must be read together and not in priority of the first
over the second.

This provision of the Code has been elaborately explained by the Indian Courts in various
landmark judgments. One of the earlier judgments in this regard came even before independence
in the year 1935 from Calcutta High Court in the seminal case of Haru Bepari and Ors. vs. Roy
Kshitish Bhusan Roy Bahadur and Ors.(21.05.1935), where under Justice Khundkar and Chief
Justice Henderson, it was held that, “The conditions which rendered the joinder of several

13
plaintiffs permissible under Order I, Rule 1. C. P. C. do not necessarily imply that there can be
only one cause of action in the suit in which the several plaintiffs join”.

This was followed by Guwahati High Court judgment delivered in the year 1956 in the
remarkable case of of Sitaram Agarwallavs. Rajendra Chandra Pal where the Court made an
observation that, “It is not necessary that all questions arising in the case should be common to
two suits if plaintiffs co – sharers had instituted separate suits. If even one question of law or fact
common to both the suits could arise, there would be justification for joinder and the
requirement of Rule 1 of Order 1 would be satisfied. The defence actually set up would have
been raised in both the suits.” and that “The joinder has caused no difficulty in the consideration
of this plea and has not adversely affected the case of the defendant on the merits.”

In the year 1964, another matter in Allahabad High Court came forward in this regard in the
celebrated case of of Shambhoo Dayalvs. Chandra Kali Devi, where the Court made an
observation that, “The law was changed after the decision in Salima Bibi v. Sheikh Muhammad
(ILR 18 All 131) and now it is possible for three plaintiffs to be joined in one suit even on the
basis of different causes of action, provided any common question of law or fact would arise if
the suit had been filed separately. The change in India was parallel to corresponding changes in
English procedure and a joinder of plaintiffs on the same principle is permitted by the English
and Indian Courts today.”

Further, in a subsequent Bombay High Court judgement delivered in the year 1972, in the
landmark case of Krishna Laxman Yadav and Ors. vs. Narsinghrao Vithalrao Sonawane and
Anr., in the Courtroom of JK.K. Desai and Chief Justice M.S. Vaidya, it was observed that, “The
result of the provisions of Order 1, Rule 1 of the Civil Procedure Code is that where right to
relief exists in favour of several plaintiffs as a result of the same transaction even if the right is
several the plaintiffs would be entitled to join in the same suit for the several reliefs the only
precondition being that common question of law or fact arose between the plaintiffs.”

It was followed by the verdict delivered by Rajasthan High Court in the case of Hari Ram Fatan
Das and Ors. vs. Kanhaiya Lal and Ors., where in the Court of Justice P.N. Singhal, it was
observed that, “The relief which the -plaintiffs have claimed, jointly, against the defendants thus
arises out of that basic fact, not only in regard to that part of the suit which relates to the

14
recovery of the arrears of rent and damages, but also the other part relating to eviction from the
suit premises. One essential requirement of Order 1. Rule 1. C. P. C. has therefore been fulfilled
in this case. According to the other requirement of the rule joinder of plaintiffs would be
permissible if it could be shown that “any common question of law or fact” would arise if they
brought their suits separately. It is quite obvious in this case that the common questions of fact
which would arise on the filing of separate suits would be those relating to the existence of the
tenancy granted by Lal Mohammad and the non-payment of rent by the defendants at the rate of
Rs. 50/- per mensem. It is therefore clear that both the essential requirements of Order I. Rule 1,
C. P. C. have been fulfilled and there is no reason why the four plaintiffs should not have join-ed
in their suit against the defendants.”

Later, another Bombay High Court judgment delivered in 1978 in the case of Paikanna Vithoba
Mamidwar and Anr. vs. Laxminarayan Sukhdeo Dalya and Anr., where the Court opined that, “It
is not, therefore, necessary any more that there must be identity of interest or identity of causes
of action. What is necessary is the involvement of common question of law or fact.”

An attempt has been made by the legislators, and in order to provide the defendants with equal
footing, a similar provision has been provided for in Order 1, Rule 3 of Code of Civil Procedure,
1908 which reads as:

 Who may be joined as defendants

All persons may be joined in one suit as defendants where—

(a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts
or transactions is alleged to exist against such persons, whether jointly, severally or in the
alternative; and

(b) if separate suits were brought against such persons, any common question of law or fact
would arise.”

It can be observed that the provision provided is more or less the same for both plaintiffs as well
as defendants.

15
This was further clarified and explained by the Honourable Supreme Court in 1999 in the
seminal case of Iswar Bhai C. Patel @ Bachu Bhai Patel vs. Harihar Behera&Anr.(16.03.1999 –
SC),where the Supreme Court observed that:“This Rule requires all persons to be joined as
defendants in a suit against whom any right to relief exists provided that such right is based on
the same act or transaction or series of acts or transactions against those persons whether
jointly, severally or in the alternative. The additional factor is that if separate suits were brought
against such persons, common questions of law or fact would arise. The purpose of the Rule is to
avoid multiplicity of suits” Further the Court observed that the two provisions, namely, Order 1
Rule 3 and Order 2 Rule 3 if read together indicate that the question of joinder of parties also
involves the joinder of causes of action. The simple principle is that a person is made a party in a
suit because there is a cause of action against him and when causes of action are joined, the
parties are also joined.

On providing a harmonious construction to Order 1 Rule 1 or Order 1 Rule 3 separately with

Order 2 Rule 3 the issue seems to be resolved. Order 2 Rule 3 of Code of Civil Procedure, 1908
which can be read as:

 Joinder of causes of action.4

(1) Save as otherwise provided, a plaintiff may unite in the same suit several causes of
action against the same defendant, or the same defendants jointly; and any plaintiff’s having
causes of action in which they are jointly interested against the same defendant or the same
defendants jointly may unite such causes of action in the same suit.

(2) Where causes of action are united, the jurisdiction of the Court as regards the suit shall
depend on the amount or value of the aggregate subject-matters at the date of instituting the
suit.”

This clarifies that any party subject to the conditions provided can be joined in the suit if the
Court deems fit. Order 2 Rule 3 was further explained by the Honourable Supreme Court in 2017
in the seminal case of Kazimunnisa (dead) by L.R. vs. Zakia Sultana (dead) by L.R. and Ors.),
where it was held by the Supreme Court that, “This was an appropriate case where the

4
-https://www.lawteacher.net/free-law-essays/commercial-law/misjoinder-and-non-joinder-of-parties-commercial-
law-essay.php

16
provisions of Order II Rule 3 of the Code, which deals with joinder of causes of action, could
have been resorted to by the Court suo – moto for clubbing the two cases as the facts involved in
both the cases satisfied the attributes of Order II Rule 3 of the Code”

This view was supported by numerous High Courts even before this landmark judgement. In
Allahabad High Court in the year 1942 in the case of Karan Sinqh and others vs. Lala Kunwar
Sen and others, being one of the earlier verdicts delivered in this regard, Justice James Joseph
Whittle sea Allsop observed that, “It is necessary that the right to relief should arise out of the
same act or transaction or series of acts or transactions and this implies, in my judgment that the
acts or transactions, where they are different, should be so connected as to constitute a single
series which could fairly be described as one entity or fact which would constitute a cause of
action against all the Defendants jointly. Whether this necessary condition exists in any
particular case would, of course, depend upon the nature of the case but I am satisfied that this
at least is necessary that the case should be such that it could be said that the Court in which the
suit was instituted had local jurisdiction in the first instance to deal with the controversies
arising between the Plaintiffs and each of the Defendants.”

Further, Justice Sen of Calcutta High Court in the year 1950 in the seminal case of Shew
Narayan Singh vs. Brahmanand Singh and Ors.observed that:

“Read in isolation Order 2, Rule 3 does not permit a suit of this description. The rule permits the
joining of several causes of action in one suit against one defendant or one group of defendants
jointly. It does not sanction a single suit when the cause of action against one defendant is
different from the cause of action against another. But it has been held in numerous cases that
Order 1, RULE 3 is not confined to joinder of parties only but that it also embraces joinder of
causes of action against different parties. It has been further held that Order 2, Rule 3 must not
be interpreted so as to override or render nugatory the provisions of Order 1, Rule 3.”

And it was also observed:

“That although a suit as framed may not be in accordance with the provisions of Order 2, Rule 3,
nevertheless, it would be maintainable if it complied with the provisions of Order 1, Rule 3 and
for the purpose of showing that Order 1, Rule 3 deals not only with joinder of parties but also
with joinder of causes of action. It is permissible to join different causes of action against

17
different defendants in one suit so long as the stipulations set out in Order 1, Rule 3 are
complied with.” 5

Further the Court observed the intention behind consolidating various cases in Chitivalasa Jute
Mills Vs. Jaypee Rewa Cement and was of the opinion that The Code of Civil Procedure does not
specifically speak of consolidation of suits but the same can be done under the inherent powers
of the Court flowing from Section 151 of the CPC. Unless specifically prohibited, the Civil
Court has inherent power to make such orders as may be necessary for the ends of justice or to
prevent abuse of the process of the Court. Consolidation of suits is ordered for meeting the ends
of justice as it saves the parties from multiplicity of proceedings, delay and expenses. The parties
are relieved of the need of adducing the same or similar documentary and oral evidence twice
over in the two suits at two different trials.

Thus, it can be observed that where the same cause of action arises from the acts of various
Defendants, the Plaintiff can file a single suit against all the defendants. And the defendants may
ask to be added as a party in a suit. In every case, the joinder of a party depends upon the
satisfaction of the Court.

MIS-JOINDER:

The joinder of any person as a party to a suit contrary to the provisions of the code is called
misjoinder. Misjoinder may be misjoinder of plaintiffs; misjoinder of defendants and misjoinder
of cause of actions.

 Misjoinder of Plaintiffs
Where two or more persons may have been joined as plaintiffs in one suit but the right to
relief alleged to exist in each plaintiff does not arise out of the same act or transaction (or
series of acts or transaction) and if separate suits were brought by each plaintiff no
common question of fact or law would have been arisen, there is misjoinder of plaintiffs.
The objection on the ground of misjoinder of the plaintiffs, should be taken at the earliest
possible opportunity; if not, it is be deemed to have been waived.

5
C.K. Takwani, ‘Civil Procedure’, (Eastern Book Company, Lucknow, 2003).

18
 Misjoinder of defendants
Likewise, where two or more persons have been joined as defendants in one suit but the
right to relief alleged to exist against each defendant does not arise out of the same act or
transaction (or series of acts or transactions) and if separate suits were brought against
each defendant, no common question of fact or law would have arisen, there is
misjoinder of defendants.
 Misjoinder of cause of action
Misjoinder of causes of action may be coupled with the misjoinder of plaintiffs or
misjoinder of defendants. Thus, the subject may be considered under the following three
heads-
A) Misjoinder of plaintiffs and cause of action
Where in a suit there are two or more plaintiffs and two or more causes of action, the
plaintiffs should be jointly interested in all the causes of action. If the plaintiffs are not
jointly interest in all the cause of action, the case is one of misjoinder of plaintiffs and
cause of action. The objection on the ground of misjoinder of plaintiffs and causes of
action should be taken at the earliest opportunity.

B) Misjoinder of defendant and causes of action: Multifariousness

Where in a suit, there are two or more defendants and two or more cause of action, the
suit will be bad for misjoinder of defendants and causes of action, if different causes of
action are joined against different defendants separately. Such a misjoinder is technically
called multifariousness. The objection on the ground of multifariousness should be taken
at the earliest opportunity.
In a suit for recovery of loan advanced on an overdraft account, the joinder of a claim
against the agent on the ground that he had acted in excess of his authority and against
the managing director on the ground that he had approved of it would render the action
multifarious.
In a case, where the plaintiff purchased the suit house in which two persons were
residing as tenants separately and he brought a suit for eviction against both the
defendant-tenants claiming different relief against them. It was held that the suit was bad
for multifariousness.

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 C) Misjoinder of claims founded on several causes of actions
Order 2 of the code of Civil Procedure Code deals with the misjoinder of claims founded
on several claims. According to the rule, every suit must include the whole claim which
the plaintiff is entitled to make in respect of that cause of action.
The question whether or not there is misjoinder of parties has to be decided on the basis
of the averments made in the plaint and not reference either to the written statement or
on the evidence led by the parties.
Rule 9 expressly and unequivocally declares that no suit is liable to be dismissed by
reason of misjoinder of parties. In other words, misjoinder of parties is not fatal to the
suit. It is mere irregularity covered by sections 99 and 99-A of the Code. Hence the
various high courts, on the question of misjoinder of parties held that no decree shall be
reversed or substantially varied, nor shall a case be remanded in appeal inter alia on
account of misjoinder of parties, not affecting the merits of the case or the jurisdiction of
the court. Where there is a misjoinder of parties, the name of the plaintiff or the
defendant who has been improperly joined may be struck out under r 10 and the case
may be proceed with.
In Patasibai V. Ratanlal, an application for the correction of misdescription of the
defendant (in the plaint) was allowed; the correction could not be incorporated in the
plaint. But, the misdescription did not mislead any party. In fact, the written statement
and the documents in appeal carried the correct name. it was held that decree was valid.

NON-JOINDER:

When a person who is a necessary party to a suit has not be joined as a party to the suit, it is a
case of non-joinder. As regards the non-joinder of parties, a distinction has been drawn between
the non-joinder who ought to have been joined as a party and the non-joinder of a person whose
joinder is only a matter of convenience or expediency.

A suit is not to be dismissed only on the ground of non-joinder of parties. The court may allow
necessary parties to be joined, in at a later stage. 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.

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According to the proviso of the Rule 9 of Order 1 nothing in the said rule applies to non-joinder
of a necessary party. A necessary party is that in whose absence the court cannot pass an
effective decree. If the decree cannot be effective without the absent party, the suit is liable to be
dismissed. However, where the joinder of a person is only a matter of convenience and he has
not be joined as a party, he may be added at any stage or the suit may be tried without
impleading him. The allowing of the suit depends on whether a party who has not been joined is
a necessary party or merely a proper party. If a necessary party is not joined, then, the suit is
liable to be dismissed. 6

Section 99 of the Code of Civil Procedure provides that no decree shall be reversed or
substantially valid, nor shall any case be remanded, in appeal on account of any misjoinder or
non-joinder of parties or causes of action or any error, defect or irregularity in any proceedings in
the suit, not affecting the merits of the case or the jurisdiction of the court and, however, nothing
in this section shall apply to non-joinder of a necessary party. Where a relief is sought against a
party without impleading him as a party, the suit would be liable to be dismissed.

In case of non-joinder of parties, Rule 9 provides against the dismissal of suit. The only course
open to the court under such circumstances is formally to call upon the plaintiff to make his
election and confine the suit to one set of defendants. In case of non-joinder of the necessary
party, an opportunity should be given to the plaintiff to add the necessary party. The Calcutta
High Court in the case of suit for recovery of money against LIC, it held that all the heirs of the
claimant would be necessary parties to the suit and non-joinder of some of them would be bad.

Rule 1 of Order 1 is subject to local, or special law, statutory provisions as also to any special
form of procedure prescribed by any law. Thus, any special law provides that a certain person
must be impleaded as a defendant although no relief is claimed against him, then failure to
implead him will be fatal to suit notwithstanding the provision of Order 1 rule 9.

Where a suit for possession was filed, and the defendant derived his title from the auction-
purchaser in liquidations proceedings of a company, but the plaintiff sued for declaration that the
auction proceedings and the subsequent conveyance by auction purchaser to defendant were void

6
CODE OF CIVIL PROCEDURE By: Dr. Justice B.S. Chauhan Judge Supreme Court of India,
http://www.nja.nic.in/16%20CPC.pdf

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in law under a certain Act, it was held by the Supreme Court in Vishnu v. Rajan Textile
Mills, that the liquidator was a necessary party and in his absence the suit for declaration must
fail.

Rule 9 applies to a mortgage suit as well as to other suits. In a suit for redemption of mortgage
property where the daughters of the mortgagee who were necessary parties were not impleaded
and objection as to non-joinder was not raised at earliest opportunity, the suit cannot be
maintained on account of non-joinder.

The Supreme Court held that a candidate who had withdrawn before contesting elections was not
a necessary party and so his non-joinder was not fatal to the maintainability of the election
petition and that therefore he could be impleaded as there was nothing in the Act which excluded
their application.

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 CONCLUSION

After reading in detail provisions related to essential parties to the suit and joinder, mis-joinder
and non-joinder of parties it can be concluded that absence of either party to the suit is not fatal
to the suit. Only absence of plaintiff, i.e., the party instituting the suit is fatal to the suit.

It is also important to note that non-joinder or mis-joinder of parties is not fatal to the suit. Order
1, Rule 9 of the Code of Civil Procedure lays down that no suit shall defeated by reason of the
misjoinder or non-joinder of parties, and the court may in every suit deal with the matters of
controversy so far as the regards the rights and interests of the parties actually before it. The only
exception provided to this rule is furnished by the general rule that a court will refrain from
passing a decree which would be ineffective and infructuous. To sum up, in the case of non-
joinder of necessary parties the Court cannot pass an effective decree in their absence. In such a
case, the suit cannot proceed and is liable to be dismissed if the plaintiff on being provided with
an opportunity to amend the plaintiff refuses to do so. The two principals have been incorporated
under the Code of Civil Procedure rightly in order to provide justice and protect the rights of the
individuals.

The discussion on the institution of suit under the CPC and its essentials proves that the
procedural formalities have been made with much complexity to ensure proper justice and to
restrain vexatious and false suits in the course of administration of justice; but these complexities
sometimes causes delay in the disposal of some cases. Thus too much adherence to the
procedural formalities makes the Courts over-burdened with a huge number of cases. So the
Civil Procedure Code has incorporated Section 89 for the settlement of certain disputes outside
the Court through arbitration, conciliation, judicial settlement including settlement through Lok
Adalat and mediation. To avoid unnecessary delay in the disposal of civil cases and to make
balance between the number of suits instituted and disposed of, the Alternative Dispute
Resolutions are in practice in India simultaneously with the general Civil Suits.

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 BIBLIOGRAPHY
 Primary Source
-The Code of Civil Procedure, 1908
 Secondary Sources
-C.K. Takwani, ‘Civil Procedure’, (Eastern Book Company, Lucknow, 2003).
-A.N.Saha, ‘The Code of Civil Procedure’, Vol 2 (Premier Publishing Co., Allahabad,
2004).
-M.P.Tandon, ‘The Code of Civil Procedure’, (Allahabad Law agency, Faridabad, 2002).
-https://www.lawteacher.net/free-law-essays/commercial-law/misjoinder-and-non-
joinder-of-parties-commercial-law-essay.php
-http://www.legalservicesindia.com/article/2212/Institution-of-Suit-and-its-
Essentials.html
- CODE OF CIVIL PROCEDURE By: Dr. Justice B.S. Chauhan Judge Supreme Court of
India, http://www.nja.nic.in/16%20CPC.pdf

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