CPC Order 1 R 1-9 & 13

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SUIT: MEANING

HANSRAJ GUPTA V. OFFICIAL LIQUIDATORS OF THE DEHRA DUN-MUSSOORIE ELECTRIC TRAMWAY CO. LTD., AIR 1933 PC 63 AT P. 64:

The term "suit" has not been defined in the Code. Ordinarily, a suit is a civil proceeding instituted by the presentation of a plaint.

PLAINT: MEANING

ASSAN V. PATHUMMA, (1899) 22 MAD 494 AT P. 502;

The term "plaint" is not defined in the Code. It may, however, be described as "a private memorial tendered to a court in which the person sets forth his cause of action, the exhibition of an action in writing."

ESSENTIALS OF SUIT

There are four essentials of a suit: Opposing parties; Subject-matter in dispute; Cause of action; and Relief In this lecture we are discussing everything about Parties to the suit

PARTIES TO SUIT: ORDER 1

Order 1 deals with the parties to a suit.

JOINDER OF PARTIES

The question of joinder of parties may arise either as regards the plaintiffs or as regards the defendants. An act may be done by a single individual and may adversely affect another individual. In that case, the question of joinder of parties does not arise at all. Thus, where A assaults B, the latter may sue A for tort, as it individually affects him. The question of joinder of parties arises only when an act is done by two or more persons or it affects two or more persons. Thus, if A assaults B and C, or A and B assault C, the question of joinder of plaintiffs or defendants arises.

R. 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.

R.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.

JOINDER OF PLAINTIFFS: RULE I

Rule 1 provides for joinder of plaintiffs. It states that all persons may be joined in one suit as plaintiffs if the following two conditions are satisfied:

1. the right to relief alleged to exist in each plaintiff arises out of the same act or transaction; and

2. the case is of such a character that, if such persons brought separate suits, any common questions of law or fact would arise.[R.1.] Both the above conditions should be fulfilled.

ISWAR BHAI V. HARIHAR BEHERA, AIR 1999 SC1341.

The primary object of Rule 1 is to avoid multiplicity of proceedings and unnecessary expenses.

ILLUSTRATION- 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.

ILLUSTRATION- 2

An altercation takes 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.

ILLUSTRATION- 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.

JOINDER OF DEFENDANTS: RULE 3

Rule 3 provides for joinder of defendants. It states that all persons may be joined in one suit as defendants if the following two conditions are satisfied:

1. the right to relief alleged to exist against them arises out of the same act or transaction; and

2. the case is of such a character that, if separate suits were brought against such persons, any common question of law or fact would arise. [R.3.] The word "and" makes it clear that both the conditions are cumulative and not alternative. The underlying object of Rule 3 is to avoid multiplicity of suits and needless expenses.

ILLUSTRATION- 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 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 of the same act, namely, collision of two vehicles.

ILLUSTRATION- 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.

ILLUSTRATION- 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 inasmuch as there are four distinct contracts and, therefore, four different transactions.

R.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 severely, liable on any one contract, including parties to bills of exchange, hundis and promissory notes.

7. WHEN PLAINTIFF IN DOUBT FROM WHOM REDRESS IS TO BE SOUGHT —

Where the plaintiff is in doubt as to the person 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.

R. 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.

R. 3 - A. 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, he Court may order separate trials or make such other order as may be expedient in the interests of justice.

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.

NECESSARY AND PROPER PARTIES

MEANING AND DIFFERENCE

There is an essential distinction between a necessary party and a proper party to a suit.

NECESSARY PARTY

A necessary party is one whose presence is indispensable to the constitution of the suit, against whom the relief is sought and without whom no effective order can be passed.

PROPER PARTY

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 proceeding. In other words, in absence of a necessary party no decree can be passed, while in absence of a proper party a decree can be passed so far as it relates to the parties before the court. His presence, however, enables the court to adjudicate more "effectually and completely".

TWO TESTS

Two tests have been laid down for determining the question whether a particular party is a necessary party to a proceeding:

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.

Thus, in a suit for partition, all sharers are necessary parties.

Similarly, 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.

Likewise, in an action against selection and appointment by an authority, candidates who are selected and appointed are directly affected and, therefore, they are necessary parties.

On the other hand, a subtenant is only a proper party in a suit for possession by the landlord against his tenant.

So also, grandsons are proper parties to a suit for partition by sons against their father.

Likewise, a local authority for whose benefit land is sought to be acquired by the Government is a proper party in land acquisition proceedings.

Again, in a complaint against a seniority list prepared by an employer, if no relief is sought against a particular individual, the persons shown as senior to the petitioner/plaintiff are proper parties. But if relief is claimed against a specific person, he is also a necessary party to the proceeding.

It may, however, be noted that where several persons are interested in a suit, it is not always necessary that all of them should be joined as plaintiffs or defendants. Rule 8 of Order 1 applies to such suits and it is sufficient if some of them are joined as plaintiffs or defendants, as the case may be.

NON-JOINDER OR MISJOINDER OF PARTIES: RULE 9

NON-JOINDER OF PARTIES

Where a person, who is a necessary or proper party to a suit ▪ has not been joined as a party to the suit, it is a case of non-joinder.

MISJOINDER OF PARTIES

If two or more persons are joined as plaintiffs or defendants in one suit in contravention of Order 1 Rules 1 and 3 respectively and they are neither necessary nor proper parties, it is a case of misjoinder of parties.

The general rule is that a suit cannot be dismissed only on the ground of non-joinder or misjoinder of parties. However, this rule does not apply in case of non-joinder of a necessary party.

9. MISJOINDER AND NON - JOINDER—

No suit shall be defeated by reason of the misjoinder or non-joinder 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.

PATASIBAI V. RATANLAL, (1990) 2 SCC 42.

Nor a decree passed by a competent court on merits will be set aside on the ground of misdescription of the defendant.

NABA KUMAR V. RADHASHYAM AIR1931 PC 229

If the person who is likely to be affected by the decree is not joined as a party in the suit or appeal, the suit or appeal is liable to be dismissed on that ground alone.

B. PRABHAKAR RAO V. STATE OF A.P., [1985 SUPP SCC 432]

Where all the affected persons had not been joined as parties to the petition, and some of them only were joined, the Supreme Court took the view that the interests of the persons who were not joined as parties were identical with those persons who were before the court and were sufficiently and well represented and, therefore, the petition was not liable to be dismissed on that ground.

OBJECTIONS AS TO NON-JOINDER OR MISJOINDER OF PARTIES: RULE 13

All objections on the ground of non- joinder or misjoinder of parties shall be taken at the earliest possible opportunity and, in all cases where issue 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. All objections on the ground of non-joinder or misjoinder of parties must be taken at the earliest opportunity, otherwise they will be deemed fro have been waived.[R. 13.]

NABA KUMAR V. RADHASHYAM, AIR 1931PC229

But if the objection as to non-joinder of necessary party has been taken by the defendant at the earliest stage and the plaintiff declines to add the necessary party, he cannot subsequently be allowed in appeal to rectify the error by applying for amendment.

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