Order I

Lecture 14
Parties to Suit
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 Introduction
• Sections 26 – 35B and Orders 1 to 20 deal
with procedure relating to suits.
Order 1 – Parties to Suit
 Meaning of Suit
• The term ‘suit’ has not been defined in CPC.
• Dictionary meaning of suit;
• “suit is a generic term of comprehensive
signification referring to any proceeding by
one person or persons against another or
others in court of law wherein the plaintiff
pursues the remedy which the law affords
him for the redress of any injury or the
enforcement of a right, whether at law or in
equity.”
 In common parlance;
• Case Law: Ethiopian Airlines v. Ganesh
Narain Sahoo (2011)
• The term suit is taken to include all
proceedings of a judicial nature in which
the disputes of aggrieved parties are
adjudicated before an impartial forum.
 Section 26
• Institution of suits. — 1.Every suit shall be
instituted by the presentation of a plaint or
in such other manner as may be
prescribed.
 Essential of Suits
1. Opposing Parties;
2. Subject-matter in dispute;
3. Cause of action;
4. Relief
 Parties to Suit
Order I deals with :
• Parties to suit;
• Addition, deletion and substitution of parties;
• Joinder, misjoinder and non-joinder of parties;
and;
• Objection as to misjoinder and non-joinder;
• To some extent, it also relates with joinder of
cause of action
• Representative suit
 Meaning of Plaint
• Not defined in CPC;
• “a private memorial tendered to a court in
which the person sets forth his cause of
action, the exhibition of an action in
writing.”
 Parties to Suit
• Plaintiffs and Defendants
• Joinder of parties: applies to both, means
joinder may be plaintiffs or defendants. In a
suit, if A assaults B and C, B & C will be
joinder of plaintiffs will be there and if A
and B assaults C, there will be joinder of
defendants.
• It means when plaintiffs or defendants are
joined for a suit as parties.
 Order I
Parties to Suits
Rule 1. 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 word “and” between clauses “a” and “b” makes it
clear that both of the above conditions should be
fulfilled.
 Object of Rule 1
• To avoid multiplicity of proceedings and
unnecessary expenses.
• Illustration: A enters into agreement jointly
with B and C to sell 100 tins of oil. A then
refuses to deliver the goods. In this both, B
and C, have each of them right to recover
damages from A. this right arises out of the
same transaction, breach of agreement and
common questions of law and the fact would
also arise. So, B and C may file a suit jointly as
plaintiffs against A for damages.
• Rule 2. Power of Court to order separate
trial.—Where it appears to the Court that
any joinder of plaintiffs may embarrass or
delay the trial of the suit, the Court may
put the plaintiffs to their election or order
separate trials or make such other order
as may be expedient.
Rule 3. 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 aganist 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.
The word “and” between clauses “a” and “b” makes it
clear that both of the above conditions should be
fulfilled.
 Object of Rule 3
• To avoid multiplicity of proceedings and
unnecessary expenses.
• Illustration: there is a collision between a bus
and a car. The bus belongs to B and the car
belongs to C. As a result of the collision, A, a
passer by is injured. A may join B and C as
defendants in one suit for damages for
injuries caused to him by negligence on the
part of both of them or any one of them, since
the case involves common questions of fact
arising out the same act, namely, collision of
two vehicles.
Rule 3A. Power to order separate trials
where joinder of defendants may
embarrass or delay trial.—Where it
appears to the Court that any joinder of
defendants may embarrass or delay the
trial of the suit, the Court may order
separate trials or make such other order
as may be expedient in the interests of
justice.
 Rule 4. Court may give judgment for or
against one or more of joint parties.
—Judgment may be given without any
amendment — a)( for such one or more of
the plaintiffs as may be found to be entitled
to relief, for such relief as he or they may be
entitled to;
(b) against such one or more of the
defendants as may be found to be liable,
according to their respective liabilities.
Rule 5. Defendant need not be interested in all
the relief claimed.—It shall not be necessary
that every defendant shall be interested as to
all the relief claimed in any suit against him.
Rule 6. Joinder of parties liable on same
contract.—The plaintiff may, at his option, join
as parties to the same suit all or any of the
persons severally, or jointly and severally,
liable on any one contract, including parties
to bills of exchange, hundis and promissory
notes.
Rule 7. When plaintiff in doubt from whom
redress is to be sought.—Where the
plaintiff is in doubt as to the persons from
whom he is entitled to obtain redress, he
may join two or more defendants in order
that the question as to which of the
defendants is liable, and to what extent,
may be determined as between all parties.
 Necessary and Proper Parties
• A necessary party is one whose presence is crucial to
the framing of suit because he is the one against whom
the relief is sought and without whom no effective order
can be passed.
• A proper party in one if it is not present, an effective
order can be passed but a final and complete decision
on the question involved in proceeding can not be
reached at.
• Or it can be said that in absence of a necessary party no
decree can be passed. But in the absence of proper party
a decree can be passed so far as it relates to the parties
before the court.
• This is also true that presence of proper party enables
the court to adjudicate more “effectually and completely”
.
 Test to determination of proper
party and necessary party
1. There must be a right to some relief
against such party in respect of the
matter involved in the proceeding in
question; and
2. It should not be possible to pass an
effective decree in absence of such a
party.
Examples of Necessary Parties
• In a suit of partition – all sharers
• For a declaration to set aside public
auction – purchaser of property
 Examples of Proper Parties
• Subtenant
• Grandsons in case of partition by sons
against their father
Thank You