1.

All objections on the ground of non-joinder or misjoinder of parties must be taken at

the earliest opportunity, otherwise they will be deemed to have been waived. But, if
the objections as to non-joinder of necessary party has been taken by the defendant at
the earliest stage and the plaintiff declines to add the necessary party, he cannot
subsequently be allowed in appeal to rectify the error by applying the amendment. 
As per Rule 13 of Order 1 of the Code of Civil Procedure, all objections on the
ground of non-joinder or mis-joinder of parties shall be taken at the earliest possible
opportunity and, in all cases where issues are settled, at or before such settlement,
unless the ground of objection has subsequently arisen, and any such objection not so
taken shall be deemed to have been waived.
The Supreme Court in various cases held that an objection to non-joinder and
misjoinder of necessary party should be taken at the earliest opportunity before the
settlement of issues. An objection as to non-impleadment of a party, in a writ petition
has to be taken at the stage of second appeal. The Andhra Pradesh High Court held
that an issue of non-joinder of a necessary party can be raised in appelleate court.  An
objection as to non-impleadment of a party, in a writ petition has to be taken at the
stage of counter-affidavit and not at the belated stage of hearing.
An issue of non-joinder of a necessary party can be raised in appellate court. An
objection as to non-impleadment of a necessary party, which was not taken in the first
appeal cannot be allowed to be taken at the stage of second appeal. 
Objection as to misjoinder, when not raised in court of first instance is no ground for
reversing a decree when they do not affect the merits of the case. The plea cannot be
raised for the first time in the second appeal. When objection to want of parties is not
raised by the defendant, it must be deemed to have been waived. But, court can add
one as a party if it thinks it necessary. Where a necessary party is not impleaded, the
objection even if not taken in the trial court, cannot be said to be waived. It can be
raised even in revision. 
The words ‘unless the ground objection has subsequently arisen’ allows to object even
after the settlement of issues. In a partition suit, all coparceners must be joined as
parties, even though some of them may be born after the institution of the suit. In the
same way, a woman who is a party to a suit is married after the settlement of issues
and the nature of the suit is such that the husband is a necessary party, the plaintiff
should make the husband a party and the defendant may raise this objections even
though it be after the settlement of issues.

2.
The following conditions must be fulfilled in order to attract the rule of res judicata-:
(a) The matter directly and substatially in issue is the subsequent suit or issue must be
the same matter which was directly and substantially in issue either actually or
constructively in the former suit
Directly and substantially in issue- a matter will not be res judicata merely because it
is an issue as it should be both directly and substantially in issue
Former suit- the expression former suit has been defined which means a suit that has
been decided prior to the suit in question whether or not it was institutted prior.

(b) A matter will be res judicata only if the parties to the former suit are the same. It is
not necessary that all parties in the suits be same

(c) The parties as aforesaid must have litigated under the same title in the former suit

(d) Both courts should be of concurrent jurisdiction

(e) The matter in issue in the subsequent suit must have been heard and finally
decided in the former suit
It has been held in the number of cases that ‘a verdict against a man suing in one
capacity will not stop him when he sues in another capacity’. For example, ‘A’ file
suit against ‘B’ as the owner of property and suit is dismissed by the court. Later on,
he filed a suit to claim his right as mortgagee will not bar him to institute a subsequent
case. So where the suit is filed in a different capacity then it is considered to be a valid
suit and doesn’t bar by this doctrine.

3.
When one party affirms and other party denies a material proposition of fact or law,
then only issues arise. If there is no specific denial, the question of framing issue does
not, generally, arise. Material propositions are those propositions of law or fact. The
plaintiff must allege such material propositions in order to show his right to sue. In the
same way, defendant must allege as to constitute his defence. Unless each material
proposition is affirmed by the plaintiff and denied by the defendant, a distinct issue
will not form.

Material Propositions:
Basically, Material propositions can be understood in sense of two aspects. Those are
Proposition of fact and Proposition of law. Those propositions of fact or law which a
plaintiff must specifically allege in order to show a right to sue or a defendant must
specifically allege in order to constitute his defence in such suit. In Sri Nanjudchari
vs. The Chairman , it was held that '' It is mandatory on the part of the trial court to
frame all necessary issues arising from pleadings i.e., material preposition of fact and
law of affirmed by the one party and denied by the another.

When Does A '' Distinct Issue'' Form ?

To form a distinct issue, a material proposition must affirmed by one party and denied
by other. Unless each material proposition is affirmed by the plaintiff and denied by
the defendant, a distinct issue will not form.
At this juncture, it is not out of scope to see Rule 1 (3) of Order XIV of C.P.C, which
reads as infra:
'' Each material proposition affirmed by one party and denied by the other shall form
the subject of a distinct issue.''

Kinds Of Issues:
If defendant makes no defence, framing and recording issue by the Court does not
arise. That too, in such a case, a Court need not frame and record a issue inasmuch as
the defendant makes no defence at the first hearing of the suit. In Desi Kedri vs.
Huzurabad Co-Operative Marketing Society Ltd.,, it was held that ''Issues need not be
framed when there is no dispute with regard to material averments in the plaint.''

According to Rule 1( 4) of Order XIV of C.P.C, issues are of two kinds.

a) issues of fact,
b) issues of law.
4.
 Order 9 Rule 8 C.P.C. provides : Where the defendant appears and the plaintiff does
not appear when the suit is called on for hearing, the court shall dismiss the suit,
unless the defendant admits the claim, or part thereof, in which case the court shall
pass a decree accordingly.
Order 9 Rule 9 C.P.C. further provide : On such dismissal of the suit, the plaintiff is
precluded from bringing a fresh suit in respect of the same cause of action; but he may
apply for an Order to set the order of dismissal aside. The court shall, after issuing
notice of the application to the other side and on being satisfied that there was
sufficient cause for non-appearance, set aside the dismissal on payment of costs or on
other terms as it thinks fit.
In Lakshmi Commercial Bank v. Hans Raj AIR 1981 P&H 228 it was observed:-
"In deciding whether a suit dismissed for default be restored, what has really to be
considered is whether the plaintiff was really trying to appear on the day fixed. If
sufficient cause is shown by the plaintiff for his non- appearance court may restore the
suit. What is "sufficient cause" depends upon facts and circumstances of each case
and liberal and generous construction should be adopted to advance the cause of
justice and restoration should not ordinarily be denied."
Symbiosis Law School, Pune
Internal Backlog
SUBJECT: CPC I

Submitted by-:
Arindam Arav Prakash
18010126013
Semester-III
Division- A
9939804100