Order I - Parties to the suit

Illustrations – Order I Rule 1

1. A enters into an agreement jointly with B and C to sell 100 tins of oil.
A thereafter refuses to deliver the goods. Here both B and C have each
of them a right to recover damages from A. the said right arises out of
the same transaction, namely, the breach of agreement; and common
questions of law and fact would also arise. B and C, therefore, may file
a suit jointly as plaintiffs against A for damages. (C.K. Takwani)

2. An altercation take 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 that tortious act since
both the above conditions are fulfilled. (C.K Takwani)

3. A agrees to sell and deliver 100 tins of oil to B at a particular rate on

1st January 1991. He also agrees to sell and deliver a like quantity of
oil on the same day at the same price to C. B and C cannot join as
plaintiffs in one suit against A as the transactions are different. (C.K.
Takwani)

Illustrations – Order I Rule 3

1. 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 passerby 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 the common question of fact
arising out of the same act, namely, the collision of two vehicles.

2. An altercation takes place between A on the one hand and B and C on

the other. B and C simultaneously assault A. A may join B and C as
defendants in one suit for damages for that tortious act as both the
above conditions are fulfilled.

3. B, C, D and E each separately entered into an agreement with A to

supply 100 tins of oil. They failed to supply the goods. A cannot join
B, C, D and E as defendants in one suit for damages in as much as
there are four distinct contracts and, therefore, four different
transactions.

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Illustrations – (From Mulla on CPC)

Jointly
a) B and C simultaneously assault A in pursuance of a conspiracy. A
may sue B and C in one suit for damages.
b) A obtains a lease of certain lands from B (landlord), and enters into
possession of the lands. B then lets the land s in separate portions
to C, D, and E. Subsequently, B,C,D and E forcibly dispossess A of
the land. A may sue B, C, D and E in one suit for ejectment. The
plaintiff being entitled to claim possession of the land as whole, the
mere fact that C,D and E hold specific and distinct portions of the
land under different demises from B does not make the suit bad for
misjoinder of defendants.

Severally
a) Certain property held by A is sold under the Madras Rent Recovery
Act in separate lots for arrears of rent and purchased by B, C, and
D, respectively. A sues B, C, and D to set aside the sale on the
ground that proper notice of sale was not given. The suit is not bad
for misjoinder of defendants merely because the property was sold
to different purchasers.
b) A suit is brought by a reversionary heir on the death of a Hindu
widow to recover from A, B and C, three separate properties sold by
the widow to A, B and C, respectively, by three separate deeds of
sale, on the ground that the sale was made without legal necessity.
According to the Madras decision, the suit is not bad for
misjoinder, but according to the Bombay and Allahabad decisions,
it is.

Alternative
a) A executes a lease of his land to B for a period of two years. At the
end of the first year A sells the land to C. C demands rent for the
second year from B. B alleges payment of the whole rent for two
years to A in advance. C may sue A and B, praying for decree
against A, if it be found that B paid the rent to A as alleged, or, in
alternative, against B if it be found that B did not pay the rent to A.

b) A purchases certain land from B and enters into possession.

Subsequently, he is dispossessed by C who claims to be the owner
of the land. A may sue B and C, praying for a decree against B for
refund of the purchase money if it is found that C is the owner, or
a decree in the alternative, against C for possession if it is found
that C is not the owner.

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Necessary and Proper Parties:
• Necessary party is one whose presence is indispensable to the
constitution of th 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 proceedings.

Test -
Kasturi v. Iyyamperumal (2005) 6 SCC 733
Two tests have been laid down for determining the question whether a
particular party is a necessary party to a proceedings.
(i) There must be a right to some relief against such party in respect of the
matter involved in the proceedings in question; and
(ii) it should not be possible to pass an effective decree in the absence of
such a party.

Example:
• In a suit for partition, all shares are necessary parties.
• A purchaser of property in a public auction is a necessary party to
the suit for a declaration to set aside the said public auction.
• In an action against the selection and appointment by an authority,
candidates who are selected and appointed are directly affected and
therefore, they are necessary parties.
• Subtenants is only a proper party in a suit for possession by the
landlord against his tenants.
• Grandsons are proper parties to a suit for partition by sons against
their father.
• Local authority for whose benefit land is sought to be acquired by the
Government is a proper party in land acquisition proceedings.

Striking out or adding parties

Order I rule 10(2) empowers the court to add any person as a party to the
suit on either of the two grounds.
1. Such person ought to have been joined as a plaintiff or defendant and
is not so joined; or
2. Without his presence, the question involved in the suit cannot be
completely decided.

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Razia Begum vs. Sahebzadi Anwar Begum and Ors. AIR 1958
The provisions of rule 10(2) of Order I confer very wide powers on the
court regarding joining of parties. Such power have to be exercised on sound
judicial principles keeping in mind all the facts and circumstance of the
case.
Two considerations especially will have to be kept in mind before
exercising this powers namely,
(i) the plaintiff is a dominus litis. He is the best judge of his
interest. It is, therefore, for him t choose his opponent from
whom he claims relief and normally, the court should not
compel him to fight against a person whom he does not want
to fight and from whom he claims no relief; and
(ii) if the court is satisfied that the presence of a particular
person is necessary to effectively and completely adjudicate
all the disputes between the parties, irrespective of the
wishes of the plaintiff, the court may exercise the power and
join a person as party to the suit.
The power may be exercised by the court at any stage of the
proceedings either upon an application of the parties or even suo motu and
on such terms and conditions as may appear to the court be just.

Anil Kumar vs Shivnath (1995) 3 SCC 147

Considering the provisions of Order I Rule 10(2), the Supreme court
observed, “though the court may have power to strike out the name of a
party improperly joined or add a party either on application or without
application of either party, but the conditions precedent is that the court
must be satisfied that the presence of such party to be added, would be
necessary in order to enable the court to effectively and completely
adjudicate upon and settle all questions involved in the suit. The object of
the rule is to bring on recode all the persons who are parties to the dispute
relating to the subject matter so that the dispute may be determined in their
presence at the same time without any protraction inconvenience and to
avoid multiplicity of proceedings.

Transposition of parties
If a person is already on record as a plaintiff or as defendant seeks his
transposition from one capacity to another capacity i.e from plaintiff to
defendant or vice versa. To avoid multiplicity of proceedings, the court can
order transposition of parties in an appropriate case. This can be done
either on an application by a party or by a court suo motu. No such
transposition however can be allowed if it alters the character of the suit or
causes prejudice to the opposite party.

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Representative Suit
This provision is really to facilitate the decision of questions in which a
large number of persons are interested without recourse to the ordinary
procedures. Order I rule * of the code has been framed in order to save time
and expense, to ensure a single comprehensive trail of question in which
numerous persons are interested and to avoid harassment to parties by a
multiplicity of suits. To bring a case within the provisions of Order I Rule 8
of the code all the members of a class should have a common interest in a
subject matter and a common grievance and the relief sought should in its
nature be beneficial to all.
Conditions:
For representative suit the following conditions must exist.
a) The parties must be numerous.
b) They must have the same interest in the suit.
c) The permission must have been granted or direction must have
been given by the court; and
d) Notice must have been issued to the parties whom it is proposed
to represent in the suit.

T.N. Housing Board vs. T.N. Ganapathy (1990) 1 SCC 608

Residential building were allotted by the housing board to the applicants
who belonged to the 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
notices were issued against each of the allottees, giving rise to separate
causes of action. Negativing the contention the supreme court held that all
of them had the same interest and, therefore, the suit was maintainable.

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 Few Case laws on parties to the suit in general

Hari Ram vs Jyoti Prasad, AIR 2011 SC 952

A suit for removal of encouragement on public street was filed by an
aggrieved person whose right to use public street of 10 feet width was
prejudicially affected due to encroachment made by the appellant. It was
held by the Supreme Court that since the affected person had himself filed
the suit, therefore, the suit cannot be dismissed on the ground of non-
compliance of provision of order 1 rule 8 of code.

Kumarvehi vs Ramaswami AIR 1933 PC 183

Order one rule 8 civil procedure code has been framed in order to save time
and expenses, to ensure a single comprehensive trial of questions in which a
large body of the persons are interested and to avoid harassment to parties
by a multiplicity of suit. It is thus a rule of convenience.

Razia Begum vs. Sahebzadi Anwar Begum and Ors. AIR 1958

The appellant instituted a suit against the third respondent, for a

declaration that she was his legally wedded wife - Though, the respondent
filed a written statement admitting the claim, but at the same time,
respondent 1 and 2 filed as suit for being added as a party to the suit as
defendants as they were wife and daughter of the third respondent It was
questioned whether the respondent 1 and 2 as parties to the case was legal -
It was held that according to the averments in the plaint only the third
respondent but the other members of his family including respondents 1
and 2, were interested in denying the appellant's status as a legally wedded
wife, hence respondents 1 and 2 were proper parties to the suit

Ramesh Hirachand Kundanmal vs. Municipal Corporation of Greater

Bombay and Ors. (04.03.1992 - SC) : MANU/SC/0493/1992

Order 1 Rule 10 of CPC, 1908 - matter related to joining of necessary parties

- Order 1 Rule 10 provides that only necessary or proper party may be
added - necessary parties is one without whom no Order can be made
effectively - proper party is one in whose absence effective Order can be
made but whose presence is necessary for complete and final decision on
question involved in proceedings - addition of parties not question of initial
jurisdiction of Court but of judicial discretion which has to be exercised in
view of all facts and circumstances of particular case.

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