Section 26 and Order IV deals with institution of suits. Where Order I provides for parties to the suit. It also provides for addition, deletion and substitution of parties, joinder, non-joinder and mis-joinder of parties and also objection as to non-joinder and misjoinder of the parties.
Order II lays down rules relating to frame of suit, splitting and joinder of claims, joinder of cause-of-action and objection as to misjoinder.
Every suit must be instituted by the presentation of a plaint in duplicate or in such manner as may be prescribed by the Code of Civil Procedure, 1908 by the plaintiff himself or by his pleader or by his agent or recognized person. Therefore, generally a proceeding does not commence until a plaint is not filed by a person in a court of competent jurisdiction.
Order I is about the subject of parties to suits and about the joinder, mis-joinder and non-joinder of parties and to some extent, with the joinder of cause-of-action.
Joinder of parties: 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 alternative; and (b) if such persons brought separate suits, any common question of law or fact would arise.
An altercation takes place between A on one hand and B and C on the other hand. A assaults B and C simultaneously. B and C may join plaintiffs in one suit for damages against A for that tortious act since both the above conditions are fulfilled.
But when 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 orders as may be expedient.
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.
In case of Govindaraju v. Alagappa, MANU/TN/0160/1926 : AIR 1926 Mad 911: (1926) 51 MLJ 194, while interpreting the two basic conditions for Order III, the court held that, the word 'and' makes it clear that both the conditions are cumulative and not alternative. So for inducing the provisions of Order III, both the conditions should be made out explicitly.
It says that: All persons may be joinded in one suit as defendant if the following two conditions are satisfied:
(1) the right to relief alleged to exist against them arises out of the same out or transaction; and
(2) the case is of such a character that, if separate suit is brought against such persons, any common question of law or fact would arise.
Illustration: B, C, E and D 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 œ as defendants in one suit for damages as much as there are from distinct contracts and therefore, four different transactions.
Before going into the question of non-joinder and mis-joinder of parties, it is necessary to understood the terms - "Necessary party" and "Proper party". A "necessary party" is one whose presence is indispensable for proceeding with the suit and for final decision thereof, on the other hand "proper party" is one in whose absence an effective order can be passed, but whose presence is required for complete and final decision of the suit.
In case of Hardeva v. Ismail, MANU/RH/0036/1970 : AIR 1970 Raj 167 two tests have been mentioned 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.
Order I, rule 8 provides that there are numerous persons having the same interest in one suit, one or more or such persons may with the permission of court sue on behalf of or for the benefit of all persons so interested. Bhupendra Singh Babera v. Municipal Council, MANU/CG/0051/2001 : AIR 2002 Chh 7.
Order I, rule 9 says: "No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the court in every suit may deal with the matter in controversy so far as 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.
So, where a person, who is necessary or proper party to a suit has not been joined as a party to the suit, it is a case of non-joinder. Conversely, if two or more persons are joined as plaintiffs or defendants in one suit in contravention of Order I, rules 1 and 3 respectively and they are neither necessary party nor proper party, it is a case of mis-joinder of the parties.
Order I, rule 13, provides that all the objections on the ground of nonjoinder mis-joinder of parties shall be taken at the earliest possible opportunity and, in all cases where issues 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.
Non-joinder (meaning) - Where a person who is a necessary party to a suit has not been joined as a party to the suit, it is a case of non-joinder. A suit should not be dismissed on the ground of non-joinder.
But if the decree cannot be effective without the absent parties, the suit is liable to be dismissed. In case where the joinder of a person as a party is only a matter of convenience, the absent party may be added or the suit may be tried without him.
Mis-joinder - Where there are more plaintiffs than one and they are joined together is one suit, but the right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions alleged to exist in such persons does not arise out of the same act, or transaction and if separate suits were brought, no common question of law or fact would arise, it is case of mis-joinder of plaintiff. Misjoinder of defendants takes place in reverse position.
In case of B.P. Rao v. State of Andhra Pradesh, 1985 Supp (1) SCC 432: MANU/SC/0330/1985 : AIR 1986 SC 210: 1985 (51) FLR 501: 1985 Lab IC 1555: (1985) 2 SCALE 256: (1985) Supp 2 SCR 573, it was held by the Supreme Court that, where the affected persons had not been joined as parties to the petition, and some of them only were joined, 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 alone.
Order I, rule 10, provides for the procedure for striking out, adding or substituting the parties to the suit.
To bring a case within this sub-rule, the following two conditions must be satisfied--
(1) The suit has been filed in the name of a wrong person as plaintiff by a bona fide mistake; and
(2) The substitution or addition of the plaintiff is necessary for the determination of the real matter in dispute.
Illustration - 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.
Provisions for striking out or adding parties are governed by sub-rule (2) of rule 10 of Order 1. It lays two grounds for enforcement of the provisions--
(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.
Such amendments may be allowed by the court at any stage of suit or even at the appellate stage and upon such terms and conditions as it thinks just. No person can be added as a plaintiff without his consent.
In Md. Sabir Ansari v. Sada Nanda Mandal, MANU/JH/0619/2009 : AIR 2010 Jhar 43, the present petitioner is having an agreement to sale in his favour for part of the land involve in the Title Suit. Therefore, he is claiming right, title and interest upon the land which is a suit property of the said suit. He was also filed as many as four different Title Suits for specific performance against some of the respondents on the basis of agreement to sale. All these agreements were before the Trial Court in different Title Suits. This aspect of the matter has been lost sight of by the Trial Court while dismissing the application preferred by the present petitioner. Without joining the present petitioner, no effective decree could be passed by the Trial Court after arriving at conclusion of the dispute between the parties. The petitioner ought to have joined as a defendant. Chances of success of the petitioner ought not to have been evaluated at this stage. The Trial Court has to look at the fact that if the applicant can show a fair semblance of the title or interest, he can be impleaded as a party defendant.
In Babulal Khandelwal v. Balkishan D. Sanghvi, AIR 2009 SC 67, the Court while appointing an Administrator in an administration suit to administer the Estate of the decease, who dies intestate, may be required to examine transactions involving the properties of the Estate in order to determine the assets of the Estate as on the date of death of the owner thereof. Consequently, the impleadment of persons who may be involved in some transaction on the other concerning the Estate of the deceased, may become necessary for a decision in an administration suit. Therefore, the High Court had not committed any error in allowing the amendments to the plaint for impleading the appellants as parties to the administration suit filed by the respondent and for scrutinizing the transactions which were alleged to have been concluded by the parents of the respondents during their lifetime.
In Laxmi Shankar v. Yash Ram Vasta, MANU/SC/0254/1993 : AIR 1993 SC 1587: 1993 (2) ALT 9 (SC): (1994) 1 GLR 25: (1993) 1 SCALE 26: MANU/SC/0254/1993 : (1993) 3 SCC 49, Supreme Court, after relying upon the judgment of Pal Singh v. Sunder Singh, MANU/SC/0404/1989 : AIR 1989 SC 758: ]T 1989 (1) SC 67: (1989) 1 SCALE 36: MANU/SC/0404/1989 : (1989) 1 SCC 444: (1989) 1 SCR 67: 1989 (1) UJ 316 (SC), wherein it was held that when other co-owner did not object to eviction, one co-owner could maintain eviction petition in the absence of other co-owner. Similarly in A. Vishwanath Pillai v. Special Tahsildar for Land Acquisition No. IV, MANU/SC/0436/1991 : AIR 1991 SC 1966: JT 1991 (3) SC
575: 1991 (2) KLT 444 (SC): 1992 (1) MLJ 1 (SC): (1991) 2 SCALE 286: MANU/SC/0436/1991 : (1991) 4 SCC 17: (1991) 3 SCR 465: 1991 (2) UJ 470 (SC), it was held that co-owner could successfully file suit and recover the property against stranger, held that in the absence of necessary proof it can not be held that suit is not maintainable on the ground of non-joinder of necessary party.
Coming now to case in hand only issue for determination is whether plea of defendant (B) in the suit that necessary parties have not been joined is sustainable. In his written statement defendant (B) has produced pedigree table. However, to substantiate his plea, B has not led any evidence as to necessary party. A vague statement of B could not be considered sufficient for attraction of provisions of Order I, rule 9 of the Code of Civil Procedure, 1908. On the other hand Revenue Record shows that there were no other legal heirs of A except, C, D and G at the time of sale of suit property to plaintiff (H). Therefore, in the absence of any proof that there are other co-owners and are necessary parties, the suit can not be dismissed for non-joinder of necessary parties.
There is essential distinction between 'Necessary Party' and 'Proper Party'. A 'Necessary Party' is one whose presence is indispensable or against whom 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 complete and final decision on question involved in proceedings.
Order I, rule 9 of the Code of Civil Procedure, 1908 reads: No suit shall be defeated by reason of the mis-joinder 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.
Therefore, general rule is that no suit can be decided without necessary parties to it. However, rule 10 of Order I of the Code of Civil Procedure, 1908, provides for substitution or addition of parties to suit on either of the following two grounds:
(i) He ought to have been joined as plaintiff or defendant and is not so joined; or
(ii) without his presence, the question/issue involved in the suit cannot be completely decided.
A "representative suit" may be defined as:--
"a suit filed by or against one or more persons on behalf of themselves and others having the same interest in the suit."
The object of this provision is to facilitate the decision of questions in which a large number of persons are interested without recourse to the ordinary procedure. Order I, rule 8 of the Code of Civil Procedure, 1908 has been framed in order to same time and expense, to ensure a single comprehensive trial of question in which numerous persons are interested and to avoid harassment to parties by a multiplicity of suits; Teja Singh v. Union Territory of Chandigarh, AIR 1982 P&H 169.
Q.
In V.J. Thomas v. Pathrose Abraham, AIR 2008 SC 503, the plaint is not before the Supreme Court. The application purported to have been held by the applicant under Order I, rule 8 is also not before it. The Court held that suit filed in terms of Order I, rule 8 should ordinarily be premised on the ground that the defendants represent the parties interested in the suit. Defendants in such a suit, although, must be able to represent the public in general, but no personal decree can be passed against them. To what extent the original defendants were interested in the suit property at least in respect of the portion thereof is not known. Whether the service of notice was proper would also be the subject-matter of an enquiry by the learned Trial Court. It has also to be seen whether the notice in terms of Order I, rule 10 of the Code was published in a newspaper having a wide circulation in the locality. For the purpose of examination of said question, amongst others, the executing Court has allowed the application for impleadment of the respondents so as to enable them to press their applications for setting aside the ex parte decree upon condonation of delay. The Supreme Court does not see any reason to interfere therewith in exercise of its discretionary jurisdiction under article 136 of the Constitution of India.
So, to bring a case within the provisions of Order I, rule 8 of the Code of Civil Procedure, 1908, 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.
Following conditions may be summarized to understand the object of the provision;
(1) The parties must be numerous.
(2) They must have same or common interest in suit.
(3) Permission must have been granted on direction must have been given by the Court.
(4) Notice must have been issued to the parties concerned.
It provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause-of-action; but the plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. Thus, a plaintiff is not entitled to split his cause-of-action in two parts and bring separate of any portion of his claim arising from the same cause of action.
The following conditions are essential for attracting the provisions of Order II, rule 2 of the Code of Civil Procedure, 1908:
(1) that the second suit is in respect of the same cause of action as that on which the previous suit was based;
(2) that in respect of the cause of action, the plaintiff was entitled to more than one relief; and
(3) that the plaintiff without the leave of the Court omitted to sue for the relief for which the second suit has been filed.
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