Parties to Suits- Order 1

Parties to Suits- Order 1

Order 1 of the Code deals with the parties to the suit. "Parties' is one of the essentials of the suit. It also deals with the joinder, mis-joinder, non-joinder of parties, addition,  deletion of parties and also representative suit.

                                                           Joinder of Plaintiff [Or. I R 1 , 2]

           Joinder of Parties

                                                           Joinder of Defendent [Or. I R 3 , 3A]

Joinder of Parties

If the cause of action arises in favour of or against multiple persons then the question of joinder of plaintiff and defendant arises. If the act is done by a single individual against a single individual then the question of joinder of parties does not arise. Here, we essentially deal with joinder of plaintiffs and defendants. The question of joinder of parties is a matter of procedure and not of substantive right.

Object: The primary object of joinder of parties is to ensure that all suits are decided finally and conclusively on merits in presence of all parties.

Joinder of Plaintiffs [Rule 1]: According to Rule 1, all the persons may be joined in one suit as plaintiffs if:

(i) The right to relief alleged to exist in each plaintiff arises out of the same act or transaction either jointly, severally or alternatively, and

(ii) The case is of such a nature that if such persons brought seperate suits, any common questions of law or fact would arise.

For example, A and B were assaulted by C. Here, A and B can jointly bring against C an action for damages for assault because right to relief existing in A and B arose out of same transaction and same question of fact and law will be involved if separate suits were brought by A and B against C.

Similarly, where A publishes a book under the name "The Oxford and Cambridge Publication', both the Universities, ie., the Oxford and Cambridge can jointly sue A to restrain A from using the title.

Joinder of defendants [Rule 3]: Rule 3 lays down following conditions for the joinder of defendants:

(i) The right to relief alleged to exist against them arises out of same act or transaction either jointly, severally or alternatively, and

(ii) The case is of such a nature that if separate suits were brought against them, the common question of law or fact will arise.

For example, An altercation takes place between A on one hand and B and C on the other. B and C simultaneously assault A. A may join B and Cas defendants in one suit for damages for assault as the right to relief against them arose through same act and common question of fact and law will be involved if separate suits were brought against B and C.

No joinder if delay is caused: Even if the conditions laid down under Rulel and 3 for joinder of plaintiffs and defendants respectively are fulfilled, yet the court may order separate trials if such joinder embarrass or delay the trial of suit [Rule 4].

Necessary and Proper Parties

Meaning: A necessary party is one against whom a relief is sought and in whose absence no decree or effective order can be passed. A proper party is one in whose absence effective order can be passed but whose presence is necessary for complete and final decision of the case. If the necessary party is not impleaded the suit is liable to be dismissed.

For example, in a partition suit, all sharers are necessary parties and in a suit for eviction of a tenant, the sub-tenant would be proper party.

(i) There must be a right to some relief against such party in respect of matter in issue.

(ii) It is not possible to pass an effective decree in his absence .

Non-Joinder and Mis-Joinder of Parties

Meaning: Where the person is a necessary or proper party to the suit and he has not been joined as a party then it is a case of non-joinder of parties. If two or more persons are joined as a party to the suit in contravention of Order 1 R. 1 and 3 and where they are neither necessary party nor proper party then it is a case of mis-joinder of parties.

Effect of non-joinder and mis-joinder: Order 1 Rule 9 lays down general rule for non-joinder and mis-joinder of parties. It lays down that suit cannot be defeated only on the ground of non-joinder or mis- joinder of parties. However, proviso to Rule 9 states that this rule is not applicable in case of non-joinder of necessary party. Therefore, it means that if a necessary party has not been joined in the suit then the suit can be defeated. In other words it can also be said that joinder of necessary party is very much essential for the suit.

Similarly Section 99 and 99-A also provides that no decree shall be reversed, substantially varied or remanded in appeal on account of any mis-joinder or non-joinder of parties. Decree can be so reversed if-

(i) it affects merits of the case, or

(ii) if affects jurisdiction of the court.

But non-joinder of necessary party is a serious defect and would not be covered under Section 99. 

Objections as to non-joinder and misjoinder: Order 1 Rule 13 provides for objections as to non-joinder or mis-joinder of parties. It provides that:-

(a) All objections on the ground of non-joinder or mis-joinder of parties shall be taken at the earliest possible opportunity; and

(b) In all cases, where issues are settled, at or before such settlement, unless the ground of objection has subsequently arisen.

(c) Any such objection not so taken shall be deemed to have been waived.

Striking out, Addition or Substitution of Parties

Order 1 Rule 10 deals with striking out, addition and substitution of parties. As a general rule it is the discretion of plaintiff to choose his adversary because he is the dominus litis. The courts should not interfere in it but court also has a duty to do justice and to see all persons who ought to be involved in the controversy are present on record in order to avoid multiplicity of suit and finally decide all the issues involved in it.

Addition or substituting plaintiff: Rule 10(1) provides for adding or substituting plaintiffs. Following conditions must be fulfilled:-

(i) The suit has been filed in the name of wrong plaintiff;

(ii) Such mistake must be bona fide,

(iii) The substitution or addition of the plaintiff is necessary for the determination of the real matter in dispute. 

For example, D is an agent of A. D, under a bona fide mistake files a suit against B in his own name. The name of principal A can be substituted by the court.

Such amendment may be made at any stage of the suit or even at appellate stage. A person cannot be added as plaintiff without his consent. The object of this provision is to protect the bona fide claims on technical ground of maintainability. 

Striking out or adding parties: Rule 10(2) provides for adding or striking out parties. It provides that the court may either strike out or add parties on following two grounds:-

(i) Person ought to have been joined as plaintiff or defendant, but he was not so joined;

(ii) Without the presence of that person the question involved in the suit cannot be completely decided.