By: Umme Ruman
Civil suit usually involves private disputes between persons or organisations. A civil case begins when a person or organisation, claims that another person or organisation, has failed to carry out a legal duty owed to them. The aggrieved party may ask the court to tell the other party to fulfil the duty, or make compensation for the harm done, or both. Legal duties include respecting rights established under the Constitution or under any other statute. Civil disputes are dealt under the Civil Procedure Code, 1908.
The parties in a civil suit are classified as Plaintiffs and Defendants. Plaintiff is the aggrieved party who files the civil suit, against the wrongdoer who becomes the defendant. There may be more than one plaintiff or defendant in any suit. Order 1 of Civil Procedure Code, 1908 contains provisions which deal with the parties to a suit.
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JOINDER OF PARTIES TO A CIVIL SUIT
Joinder of parties means to add all persons concerned in a particular dispute to the suit. Parties can be joined at anytime, subjected to the conditions laid down in the Code. Order 1 Rule 1 of the Code states when a person may be joined as plaintiff:
“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”[1]
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The Code clearly provides that, a party may be joined at any time as a plaintiff provided that they must have right to claim a relief, either rising from the same act(s) or same transaction(s) based on which the suit was filed. When a separate suit is filed by the parties, there should exist a common question of law or fact, for them to be joined as plaintiffs.
The first landmark case which discussed this provision was the case of Haru Bepari and Ors. vs. Roy Kshitish Bhusan Roy Bahadur and Ors.[2], where it was held that, “The conditions which rendered the joinder of several 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 view was accepted by many other judgments that followed this case. It is key to note the decision given by the Bombay High Court in the case of Paikanna Vithoba Mamidwar and Anr. vs. Laxminarayan Sukhdeo Dalya and Anr.[3], where the Court decreed 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.”
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Similar provision was provided to the defendants within the Code prescribed in Order 1 Rule 3, which states that:
“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 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.”
Thus, the condition for joinder of defendant is the same as the conditions laid down for the joinder plaintiffs. This was provision explained by the Supreme Court in Bachu Bhai Patel vs. Harihar Behera & Anr.[4], where it seen 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.”
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It was further observed in this case that when Order 1 Rule 3 and Order 2 Rule 3 are read together, it signifies that the question of joinder of parties also includes the joinder of causes of action. The basic principle is that when causes of action are joined, the parties are also joined, since the cause of action is raised against the party. Order 2 Rule 3 states:
“3. Joinder of causes of action.—(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 plaintiffs 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.”
Thus, in cases where parties are involved in the same transaction or where they are moving for the same cause of action, they can be joined within the same suit, either as plaintiffs or defendants. However, this action depends on the discretion of the Court.
MISJOINDER OF PARTIES TO A CIVIL SUIT
According to the Merriam- Webster Dictionary, misjoinder means, “an improper union of parties or of causes of action in a single legal proceeding.” Thus, when those parties who have no relevant connection to the suit or when those causes of action are pleaded which bear no correlation with the facts of the case are joined, it becomes misjoinder of parties or causes of action.
When two or more persons are joined as plaintiffs or defendants in a particular suit in breach of order 1, Rules 1 or 3 respectively and they are neither necessary nor are proper parties, it is a case of misjoinder of parties. Additionally, when persons having different causes of action file a suit together, it would also be considered as misjoinder of parties.
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Where in a suit there are more than two defendants and more than two causes of action, the suit will be deemed as bad for misjoinder of defendants and cause of action, when different causes of action are combined against various defendants separately. Such a misjoinder is technically known as multifariousness.
The objection to the misjoinder of parties should be raised at the earliest stage possible. If the parties fail to do so, they are considered to have waived this right. The decision whether or not there is misjoinder of parties has to be made in consideration of the averments made in the plaint and both the written statement and the evidence led by the parties should not be taken into consideration for the purpose.
However, as serious misjoinder of parties seems to be, it is not as important. Order 1 Rule 9 states that no suit is liable to be dismissed by reason of misjoinder of parties. It is deemed to be a mere irregularity which is covered by sections 99 and 99-A of the Code. Section 99 of the Code states that:
“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.”
Under Order 1 Rule 10, when there seems to be misjoinder of parties, the name of the improperly joined plaintiff or the defendant may be struck-out and the case may be proceeded as usual.
In Ramdhan Puri v. Chaudhury Lachmi Narain[5], it has been held that parties and causes of action, when once joined in the suit, there is no absolute right to have them struck out but it is discretionary with the Court to do so it thinks right. The mere fact of misjoinder is not by itself sufficient to entitle the defendant to have the proceedings set aside or action dismissed.
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The Privy Council in Muhammad Hussain Khan v. Kishva Nandan Sahai[6], held that the rule embodied in Section 99 of Civil P. C. proceeds upon a sound principle and is calculated to promote justice, it can be applied.
In Assembly of God Church v. Ivan Kapper and Anr.[7], the learned judge has held that a defect of misjoinder of parties and causes of action is a defect that can be waived and it is not such a one as to lead to the rejection of the plaint under Order VII Rule 11(d) of the Code.
NONJOINDER OF PARTIES TO A CIVIL SUIT
When a necessary party to the suit has not been joined to the suit, it is deemed to be a case of non-joinder. It is a situation where certain persons are missing from the suit without whom no effective conclusion can be reached in the case. The non-joinder of parties can be classified as, nonjoinder of necessary parties and, nonjoinder of persons who make the court’s job convenient, that is necessary parties and proper parties respectively.
Nonjoinder of parties cannot be deemed as a ground for dismissing a suit, as any party missing from the suit can be later joined according to Order 1 Rule 1 or 3, as per the discretion of the court. The absence of necessary parties means those parties from whom the cause of action against are not included in the proceedings, due to which the court cannot decree effectively. In such situations, the court may dismiss the suit but it is not necessary.
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Order 1 Rule 9 states that no suit shall be dismissed in case nonjoinder:
“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.]”
Thus, where the non-joined party is merely a proper party and not necessary, the suit is not eligible to be dismissed, however where the party in question is absolutely necessary to ensure that justice is delivered effectively, such a case may be dismissed according to the discretion of the court.
The plea of non-joinder, however, should be raised at the earliest possible stage. Where such a plea is raised by the defendant at the earliest stage, and the plaintiff refuses to include the missing party, he cannot later on file to amend his mistake.
In the case of Mohan Raj v. Surendra Kumar Taparia and Ors.[8], the Supreme Court stated that, “No doubt the power of amendment is preserved to the Court and Order 1, Rule 10 enables the Court to strike out parties but the Court cannot use Order 6, Rule 17 or Order 1, Rule 10 to avoid the consequences of non-joinder for which a special provision is to be found in the Act. The Court can order an amendment and even strike out a party who is not necessary. But when the Act makes a person a necessary party and provides that the petition shall be dismissed if such a party is not joined, the power of amendment or to strike out parties cannot be used at all. The Civil Procedure Code applied subject to the provisions of the Representation of the People Act and any rules made thereunder. When the Act enjoins the penalty of dismissal of the petition for non-joinder of a party the provisions of the Civil Procedure Code cannot be used as curative means to save the Petition.”
In Narendra Singh v. Oriental Fire and General Insurance Co. Ltd.[9], the benefit of Section 39 of the Motor Vehicles Act was extended to the plaintiff where the suit was found bad from a non-joinder of parties. Consequently, non-joinder should not be interpreted too freely; otherwise the parties shall stand to lose. If a partnership firm against another firm files a suit, all the partners have to be impleaded as plaintiffs but not their legal representatives.
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Subsequently, in Brij Kishore Sharma v. Ram Singh[10], the Supreme Court, reversing the decision of the trial court, held that the suit is not maintainable. During the pendency of the suit, one of the parties died and his legal representatives were neither notified now were added to the suit. In the opinion of the court, the legal representatives should have been brought on record.
Thus, provided the parties not necessary to the suit, the suit cannot be dismissed merely on the basis of nonjoinder of parties.
[1] Legislative.gov.in. 2020. [online] Available at: <http://legislative.gov.in/sites/default/files/A1908-05.pdf>
[2] AIR 1935 Cal 573
[3] AIR1979Bom298
[4] AIR 1999 SC 1341
[5] AIR 1937 PC 42
[6] AIR 1937 PC 233
[7] 2004(4)CHN360
[8] AIR 1969 SC 677
[9] AIR 1987 Raj 77
[10] 1996VIIIAD(SC)562
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