Order 1 Rule 1 the CPC lays down who can be joined as plaintiff
and Order 1 rule 3 lays down who can be Joined as Defendants.
Order 1 Rule 1 : The rule states that all person can be joined in
a suit as plaintiff where right to relief in respect of or arising out of the
same transaction is said to exist in this person whether jointly severally or
in the alternative and if a suit is instituted a conman question of fact or law
would arise. Orider 1 Rule 3 gives the same provision with regards to
Defendants . In a civil suit the following person can be joined as Plaintiff or
Defendants :
a) Parties allowed by Order 1 Rule 1 or Order 1 Rule 3 in case of
defendants
b) Necessary Parties
c) Proper Parties
Misjoinder: A misjoinder is a situation where parties are joined
who are neither parties allowed by Order 1 Rule 1 Or Order 1 Rule 3 nor
Necessary or Proper Parties.
Non Joinder : A Non Joinder is a situation where a party who is a
necessary party is not joined . It is often taken as a preliminary objection which
affects the maintainability of the suit
Order I Rule 10 of the CPC reads as under:
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.
(2) Court may
strike 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.
(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.
(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.
(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.
Necessary Party and
Proper Party
A necessary party is one without whom no order
can be made effectively. A proper party is one in whose absence an effective
order can be made but whose presence is necessary for a complete and final
decision on the question involved in the proceeding. The addition of parties is
generally not a question 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.
A necessary party is a person who ought to have
joined as a party and in whose absence no effective decree could be passed at
all by the court. If a necessary party is not impleaded, the suit itself is
liable to be dismissed. A proper party is a party who, though not a necessary
party, is a person whose presence would enable the court to completely,
effectively and adequately adjudicate upon all matters in dispute in the suit,
though he need not be a person in favour of or against whom the decree is to be
made. If a person is not found to be a proper or necessary party, the court has
no jurisdiction to implead him, against the wishes of the plaintiff.
Principles governing
disposal of an application for impleadment:
The broad principles are:
1. The court can, at any
stage of the proceedings, either on an application made by the parties or
otherwise, direct impleadment of any person as party, who ought to have joined
as plaintiff or defendant or whose presence before the court is necessary for
effective and complete adjudication of the issues involved in the suit.
2. A necessary party is the
person who ought to be joined as party to the suit and in whose absence an
effective decree cannot be passed by the court.
3. A proper party is a
person whose presence would enable the court to completely, effectively and
properly adjudicate upon all matters and issues, though he may not be a person
in favour of or against whom a decree is to be made.
4. If a person is not found
to be a proper or necessary party, the does not have the jurisdiction to order
his impleadment against the wishes of the plaintiff.
5. In a suit for specific
performance, the court can order impleadment of a purchaser whose conduct is
above board and who files application for being joined as party within time of
his acquiring knowledge about the pending litigation. Vidur Impex and
Traders Pvt. Ltd. V. Tosh Apartments Pvt. Ltd., (2012) 8
SCC 384.
The author is a pracisting lawyer and can be
contacted at lawyer.soniasaini@gmail.com
