Non-Joinder or Misjoinder of

Parties
Lecture 15
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 Order I
• Rule 1 deals with joinder of plaintiffs,
• Rule 3 deals with joinder of defendants.
• Rule 9 deals with Misjoinder and Non-Joinder of parties.
• Order 8 Rule 9 deals with the Re-joinder of parties which
provides for a second pleading by the defendant in reply
to duplication filed by the plaintiff.
• Order 2 Rule 3 deals with joinder of causes of action.
• Although these two orders relate to two different
subjects, they are interdependent because a question of
parties to suit also involves a question of the cause of
vice versa .
action and 
• So, both the orders have to be read together.
The simple principle is that a person is made a party in a
suit there is a cause of action against him and when
causes of action are joined, the parties are also joined.
• Moreover Section 99 should also be read together.
 Rule 9
• Misjoinder and nonjoinder.—No suit shall
be defeated by reason of the misjoinder or
nonjoinder of parties, and 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:
• Provided that nothing in this rule shall
apply to non-joinder of a necessary party.
 Rule 13
• Objections as to non-joinder or misjoinder.
—All objections on the ground of nonjoinder
or misjoinder 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.
 Joinder
• The joinder of parties may arise in both context as
regards to the plaintiffs which is mentioned under
Rule 1 or as regards to the defendants mentioned
under Rule 3.
• Where an act is done by an individual or affects
another individual, there is no question of joinder
of parties.
• However, where an act is done by two or more
persons or it negatively affects two or more
persons, a question of joinder of plaintiffs or
joinder of defendants would arise.
• And here comes the concept of joinder of parties.
 Parties can be Joined if;
Order I Rule 1
1. A right to “relief arising out of the same
act or transaction or series of acts or
transaction or series of acts or
transactions;
2. A common question of law and fact.”
 Important Point
• It is neither necessary that every plaintiff or
defendant should be interested in the entire
subject-matter of the suit, (Rule 5, defendant
need not be interested in all the relief claimed )
nor that all questions arising in the suit must
be common to all suits had the plaintiffs
brought separate suits. 
• If one question of law or fact is common, this
is enough. 
• Moreover, it is also not necessary that all
plaintiffs should have the same cause of
action. It is adequate if the right arises out of
the same act or transactions or series of acts
or transactions.
 Misjoinder
• Misjoinder may be misjoinder of plaintiffs or
misjoinder of defendants or misjoinder of the
cause of actions.
• Rule 9 states that no suit shall be dismissed by
reason of misjoinder or non-joinder of parties
and it will be decided on merits.
As a general rule, a suit cannot be dismisse on
the ground of misjoinder of parties. Usually, a
court of law is required to decide the suit on the
basis of controversy raised by the parties as
regards the rights and interests and not on
technicalities, such as misjoinder or non-joinder
of parties.
• However, all necessary parties must be before
the court. In the absence of a necessary party, a
suit cannot be decided at all. Hence, if a
necessary party is not joined, the defect is not
merely a formal one but goes to the root of the
matter.

The provisions of Rule 9 are general and apply to

all proceedings subject to “any special or local
law, or a special form of procedure prescribed by
any other law for the time being in force”.
 Case Law
Benares Bank Ltd. v. Bhagwandas, (1947)

• The Full Bench of the High Court of

Allahabad laid down two tests for
determining the question of whether a
particular party is a necessary party to the
proceeding or not:
1. There must be a right to some relief against
such party in respect of the matter involved
in the proceedings in question; and
2. It should not be possible to pass an effective
decree in the absence of such a party.”
 Case Law
Kankarathanammal v. Loganatha Mudaliar, (1965)

• A property was purchased by the husband in the

name of his wife. A suit was filed by a daughter
without joining sons (brothers) who were also
entitled to inherit property along with daughter
(sister).
• An objection was raised that brothers were
necessary parties but steps were not taken either in
the trial court or in the High Court.
• In an appeal also before the Apex Court, they were
not joined. The matter was then heard by the
Supreme Court on merits. At that belated stage, an
application to prosecute brothers was moved.
• But rejecting the impleadment, honorable Court said,:
Rejecting the prayer of impleadment, the court said

• “We do not think there is any justification for allowing the

appellant to amend her plaint by adding her brothers at this late
stage. We have already noticed that the plea of non-joinder
had been expressly taken by Respondent No. 1 and 2 in the
trial court and a clear and specific issue had been framed in
respect of this contention. While the suit was being tried, the
appellant might have applied to the trial court to add her
brothers, but no such application was made.

Even after the suit was dismissed by the trial court on this
ground it does not appear that the appellant moved High Court
and prayed that she should be allowed to join her brothers
even at the appellate stage, and so, the High Court had no
occasion to consider the said point. As no such application
was made even to this court until the appeal was allowed to
stand over after it was heard. Under the circumstances, we do
not think it would be possible for us to entertain the said
application.”
 Rejoinder
• It is a procedure to allow any party to present a
written statement or additional written statement,
subsequent to the written statement by a defendant
(other than by way of set-off or counter-claim).
The primary object of subsequent pleading is to
supply what might have been omitted inadvertently
or unintentionally or to deny or clarify the facts
stated in the pleading of the opposite party. In case
of the fresh cause of action or fresh case not
brought brought out in the previous pleading cannot
be brought on record by an additional pleading.
 Order VIII Rule 9
• 9. Subsequent pleadings.—No pleading subsequent to the written
statement of a defendant other than by way of defence to set-off or
counter-claim shall be presented except by the leave of the Court and
upon such terms as the Court thinks fit; but the Court may at any time
require a written statement or additional written statement from any of
the parties and fix a time of not more than thirty days for presenting the
same.
• This rule lays down an important rule of pleading that no pleading
subsequent to the written statement of a defendant (other than set-off
or counter-claim) can be presented without the leave of the court. Such
leave need not necessarily be in writing. It may be obtained orally.

Normally, a party intending to file an additional pleading must file an

application stating therein the reason why he failed to state certain
facts in the original pleading and why he should be allowed to file an
additional pleading.
The court, on such application should issue notice to the other side and
afford an opportunity to oppose the prayer and decide the application
by allowing or rejecting the application.
• There is no provision in the code under
which a party may claim to present
additional pleadings as of right. The rule
confers a very wide discretion on the court
and enables it to accept an additional
pleading at any time and upon such terms
as it thinks fit.
 Case Law
In State of Rajasthan v. Mohd. Ikbal
(1999)
• Rajasthan High Court laid down the following principles allowing the
plaintiff to file additional pleadings:
1. The plaintiff cannot be allowed to introduce new pleas by way of
filing a rejoinder, so as to alter the basis of his plaint.
2. In rejoinder, the plaintiff can be permitted to explain the additional
facts which have been incorporated in the written statement.
3. The plaintiff cannot be allowed to come forward with an entirely new
case in his rejoinder.
4. The plaintiff cannot be permitted to raise inconsistent plea so as to
alter his original cause of action.
5. Application under Order 8 Rule 9 CPC cannot be treated as one under
Order 6 Rule 17 CPC as both are contextually different.
Order 6 Rule 17. Amendment of pleadings.—The Court may at any stage
of the proceedings allow either party to alter or amend his pleadings in
such manner and on such terms as may be just, and all such
amendments shall be made as may be necessary for the purpose of
determining the real questions in controversy between the parties :
• Provided that no application for amendment shall be allowed after the
trial has commenced, unless the Court comes to the conclusion that in
spite of due diligence, the party could not have raised the matter before
the commencement of trial.
 Important
• An order allowing or rejecting an
additional pleading to a plaintiff or
defendant cannot be said to be “decree”
and therefore not appealable, but the
same can be revisable under Section 115
of the Code.
 Section 99
No decree to be reversed or modified for error
or irregularity not affecting merits or
jurisdiction.—No decree shall be reversed or
substantially varied, 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 :
Provided that nothing in this section shall apply
to non-joinder of a necessary party.
Thank You