STRIKING OUT ADDING OR SUBSTITUTING PARTIES: RULE 10- ORDER – 1 (CPC)
Rule 10 of Order 1 deals with striking out, addition and substitution of parties.
ADDING OR SUBSTITUTING PLAINTIFFS
R. 10. Suit in name of wrong plaintiff —
1. Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.
Rule 10(1) deals with addition or substitution of plaintiff. If after the filing of the suit, the plaintiff discovers that he cannot get the relief he seeks without joining some other person also as a plaintiff or where it is found that some other person and not the original plaintiff is entitled to the relief, as prayed for, an application for addition or substitution of the plaintiff can be made. The object underlying this provision is to save honest plaintiffs, believing bona fide in the maintainability of their claims being non-suited on a mere technical ground.
CONDITIONS
According to O1. R 10(1), any person may be substituted or added as plaintiff if the following three conditions are satisfied:
1. The suit has been filed in the name of a wrong person as plaintiff or there should be doubt as to whether suit is instituted in the name of the right plaintiff;
2. The suit has been filed through a mistake and such mistake must be bona fide; and
3. The substitution or addition of the plaintiff is necessary for the determination of the real matter in dispute.
ILLUSTRATIONS
1. C, the agent of A, under a bona fide mistake files a suit against B in his own name. The court can substitute the name of principal A for that of the original plaintiff C.
2. A joint Hindu family firm files a suit under a bona fide mistake in the name of the firm although the provisions of Order 30 relating to filing of suits by firms do not apply to such a firm. The court may allow substitution of the names of the members of the Hindu joint family firm as plaintiffs.
3. A, claiming a title under a gift deed, files a suit for possession of a house against B under a bona fide mistake that the house was gifted to him by the said deed. When it was found that the deed did not pertain to that house, the real owner could be substituted as plaintiff in place of A.
4. A sues B for possession of a house. B contends that since A has transferred the house to C, he has no title to sue and the suit is, therefore, not maintainable. A maintains his right contending that no transfer was made, but the contention is found to be false. Thereupon, A applies for adding C as a co-plaintiff. The application requires to be rejected since the mistake was not found to be bona fide.
STAGE OF ADDITION OR SUBSTITUTION
Such amendment may be allowed by the court at any stage of the suit or even at the appellate stage and upon such terms and condition as it thinks just. However, no person can be added as a plaintiff without his consent. [R.10(3).]
R. 10. (3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.
STRIKING OUT OR ADDING PARTIES
R.10 (2)-- Court may struck out or add parties —
The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name, of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.
NOTE
Either upon or without the application of either party. it means, above order can be passed by the court either suo moto or on application of either party
Whose name may be struck? any party improperly joined, whether as plaintiff or defendant Whose name may be added? any person who ought to have been joined or whose presence is necessary to enable the Court to effectually and completely adjudicate the matter
Sub-rule (2) of Rule 10 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 a defendant, and is not so joined; or
2. Without his presence, the question involved in the suit cannot be completely decided.
The purpose of this provision is to bring before the court, at the same time, all the persons interested in the dispute so that the dispute may be finally determined at the same time in the presence of all the parties without the delay, inconvenience and expense of several actions and trials and inconclusive adjudications.
RAMESH HIRACHAND V. MUNICIPAL CORPN. OF GREATER BOMBAY
The provision of O1. R.10(2) confers wide discretion on the court to meet with every case of defect of parties and is not affected by the inaction of the plaintiff to bring the necessary parties on record. Addition of parties is, however, a judicial discretion which is required to be exercised judiciously.
POWER AND DUTY OF COURT
The provisions of Rule 10(2) of Order 1 confer very wide powers on the court regarding joining of parties. Such powers have to be exercised on sound judicial principles keeping in mind all the facts and circumstances of the case.
Two considerations especially will have to be kept in mind before exercising powers, namely,
1. The plaintiff is a dominus litis. He is the best judge of his interest. It is, therefore, for him to 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
2. 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.
TEST---
The test is not whether the plaintiff agrees or objects to the addition of the party to the suit, but whether presence of such party is required for full and complete adjudication of the dispute.
PRINCIPLE
In the leading case of Razia Begum v. Sahehzadi Anwar Begum the Supreme Court has laid down the principles regarding the power of the court to add the parties under Rule 10(2) of the Code:
RAZIA BEGUM V. ANWAR BEGUM
In above case, A sought a declaration that she was the legally-wedded wife of B. One C claimed to be another married wife of B and sought to be added as a party defendant. The prayer was granted since the declaration sought for concerned the status of marriage and legitimacy of children and would affect the parties for generations to come.
Thus, the test is not whether the plaintiff agrees to adding a party as a defendant or not, but whether the relief claimed by the plaintiff will directly affect the intervener in the enjoyment of his rights.
The court must, in every case, record reasons in support of its order impleading or refusing to implead a party. But the party cannot be added so as to introduce a new cause of action, or to alter the nature of the suit.
The power can be exercised by the court at the stage of trial and that too without prejudice to the said party's plea of limitation. [R. 10(5);]
The Supreme Court has laid down the following principles regarding the power of the court to add the parties under Rule 10(2) of the Code:
1. That the question of addition of parties under Rule 10 of Order 1 of the Code of Civil Procedure, is generally not one of initial jurisdiction of the court, but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case; but in some cases, it may raise controversies as to the power of the court, in contradistinction to its inherent jurisdiction, or, in other words, of jurisdiction in the limited sense in which it is used in Section 115 of the Code;
2. That in a suit relating to property, in order that a person may be added as a party, he should have a direct interest as distinguished from a commercial interest in the subject-matter of the litigation;
3. Where the subject-matter of a litigation is a declaration as regards status or a legal character, ▪ the rule of present or direct interest may be relaxed in a suitable case where the court is of the opinion that by adding that party, it would be in a better position effectually and completely to adjudicate upon the controversy; (and)
4. The cases contemplated in the last proposition have to be determined in accordance with the statutory provisions of Sections 42 and 43 of the Specific Relief Act.41[Act 1 of 1877, Ss. 34 and 35 of the Specific Relief Act, 1963.]
RAMESH HIRACHAND V. MUNICIPAL CORPN. OF GREATER BOMBAY,
A reference may be made to a decision of the Supreme Court in Ramesh Hirachand v. Municipal Corpn. of Greater Bombay.
In that case, the plaintiff was a dealer on the land held by the Hindustan Petroleum Corporation (lessee) and was in possession of a service station. The Municipal Corporation issued a notice to the plaintiff for demolition of a certain construction alleging that it was unauthorised. The plaintiff filed a suit for permanent injunction against the Municipal Corporation. Hindustan Petroleum Corporation applied for being impleaded as a party defendant on the ground that it had material to show that the structure was unauthorised. The prayer was granted by the courts below. The plaintiff approached the Supreme Court.
Allowing the appeal and setting aside the order, the Supreme Court held that the Hindustan Petroleum Corporation was neither necessary nor proper party to the proceedings. The person to be joined must be one whose presence is necessary as a party.
The test is not whether his presence is necessary for the correct solution of the dispute before the court ▪ but whether the order would affect him or his interest would be prejudiced.
In the instant case, the question before the court was whether an unauthorised structure was made by the plaintiff contrary to the Bombay Provincial Municipal Corporation Act and not whether such construction was contrary to the agreement between the plaintiff and Hindustan Petroleum Corporation. It was altogether a different cause of action.
"The mere fact that a fresh litigation can be avoided is no ground to invoke the power under the rule in such cases."
The Court rightly stated, "It cannot be said that the main object of the rule is to prevent multiplicity of actions though it may incidentally have that effect...It is, therefore, necessary that the person must be directly or legally interested in the action in the answer, i.e., he can say that the litigation may lead to a result which will affect him legally,
The court is also authorised to strike out any party improperly joined either as a plaintiff or as a defendant in a suit. [R. 10(2)]
R. 10. (4) WHERE DEFENDANT ADDED, PLAINT TO BE AMENDED —
Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant.
R.10 (5)
Subject to the provisions of the Indian Limitation Act, 1877 (15 of 1877), section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons.
EFFECT
Where any person is added as defendant in the suit, as regards him, the suit shall be deemed to have been instituted from the date he is joined as a party.[R.10(5),] Where a defendant is added, the plaint shall be amended and the amended copies of the summons and the plaint must be served on the new defendant. [R.10(4).]
TRANSPOSITION OF PARTIES
In transposition, a person who is already on record as a plaintiff or a defendant seeks his transposition from one capacity to another capacity; i.e. from plaintiff to defendant or vice versa.
SAILA BALA DASSI V. NIRMALA SUNDARI DASSI, AIR 1958 SC 394;
Since primary object of Order 1 Rule 10 of the Code is to avoid multiplicity of proceedings, ▪ there is no reason why the doctrine of addition or striking out parties does not apply to transferring the parties from one side to the other side.
A court can, therefore, 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. Rule 10-A enables the court in its discretion to request any pleader to address as to any interest likely to be affected by its decision, if such party is not represented by a pleader.
