Aug 11,2020 | 06 min read

Joinder /Mis-Joinder /Non-joinder of parties in Civil Suits By Nisha Nandini Singh

A civil suit is a process for the recovery of an individual right or redress of an individual wrong. Case law: Krishnappa v. Shivappa

In this case Bombay high court address the essential requirements of any civil suit in its decision which says that essential requirements of the civil suit are opposing parties (plaintiff and defendant), the subject matter in dispute, the cause of action and the relief claimed by the plaintiff.

Institution of civil cases starts when the case is filed by one party against the other party, where the party who files suit seeking for the relief from another party. The party who files the case and claim relief from other party is known as plaintiff and party from whom relief is claimed is known as the defendant, Both the parties are essential for the civil suit. According to the nature of the suit jurisdiction of the court will be decided and the competent court will decide the rights and liabilities of the parties.

There are more parties other than plaintiff and defendant, such as necessary party, proper party i.e. joinder, misjoinder, nonjoinder, but all the parties are not necessary for the adjudication of the suit. Therefore, it is necessary to determine between the necessary party and proper party for the proper adjudication of the suit.  Order 1 of CPC,1908 describes who can be parties to the suit, also talks about the joinder, non-joinder, misjoinder, necessary party and proper party.

JOINDER:

There is constantly an apprehension while filing a civil suit as if all the parties of the suit have been taken into consideration for an account or not. In addition, if any party or parties are missing, can be taken into consideration and can be added or joined later in a suit as another issue. provided, Code of Civil Procedure, 1908 have a remedy to add party or parties to the suit (missing) by the process of the “JOINDER” of parties and the rest depends upon the discretion of the court under  Order 1 rule 2 and order 1 rule 3 and this has to be read with the other provisions of the act that orders 2 rule 3 and rule 4 of the civil procedure code, 1908.

The order I Rule 1 of Code of Civil Procedure, 1908 states that:

“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.”

This above-mentioned provisions of the code of civil procedure, 1908 has been explained by the range of landmark judgment. One of the famous judgments given by the Indian court before the independence of India in this regard in the year 1935 from Calcutta High Court in the case of Haru Bepari and Ors. vs. Roy Kshitish Bhusan Roy Bahadur and Ors. By J. Khundkar, in the case, the court held that the situation in the present case which makes the joinder of more parties or plaintiff which are permissible within the ambit of rule 1 of order 1 of code of civil procedure 1908, this does not make necessary to imply or render that there shouldn't be only one cause of action present in the suit filed, and further in the suit there can be many parties as a plaintiff to join as a joinder.

The joinder of party or parties has neither affected the opposite party in any manner nor caused any difficulties or hindrances contemplation of the pleadings.

The harmonious construction of Joinder between Order 1 rule 1 with rule 3 of order 2 of CPC, 1908, the problems between these two has been resolved as the rule 3 of order 2 reads as follows: causes of action of Joinder-

  1. Save as otherwise provided, a plaintiff may unite in the same suit several causes of action against the same defendant, or the same defendants jointly; and any plaintiff’s having causes of action in which they are jointly interested against the same defendant or the same defendants jointly may unite such causes of action in the same suit.

  2. Where causes of action are united, the jurisdiction of the Court as regards the suit shall depend on the amount or value of the aggregate subject-matters at the date of instituting the suit.”

As mentioned above it clarifies that any party or parties which are not joined in the suit can be joined as joinder of the suit if the court deems fit subject to the discretion. As rule 3 of order 2 of code of civil procedure was further explained by the Hon'ble SC in the year 2017 in the landmark judgement of Kazimunnisa vs. Zakia Sultana Case, the Supreme Court held that this case was the most appropriate case where the provisions of the code of civil procedure, 1908 under rule 3 of order 2 which revolves around the joinder’s cause of action.

As the court has merged the two cases having the same facts and issues by taking the suo-moto action as both the cases fully attributes and satisfy the rule 3 of order 2 of the code of civil procedure,1908. The view of the Supreme Court has been recognized by the various High Courts all over the country.

In Addition to the above, it can also be accolades that whenever the same cause of action arises from the act of defendant or opposite party/parties, the complainant or the plaintiff can come together and can become the joinder of the suit and file a single suit against the respondent or defendant. As in every case the plaintiff and the joinder of the party/parties have to be dependent on the discretion or satisfaction of the court.

NON-JOINDER:

Non-Joinder is an error or omission to join of some person or party or parties which is an essential party/parries as party/parties to a suit, he may be plaintiff or defendant who ought to need to be joined in the eyes of law as a necessary party as the final verdict or order cannot be possible by the hon’ble court to give any effective decree which has been not implemented

Non-Joinder of parties basically refers to a situation where the necessary party are missing which are an essential party without whom the decree would be difficult to pronounce. As mentioned under the code of civil procedure under provision rule 10 (2) of order 2.

In this contrast, the necessary parties is much needed not only for Court’s convenience in deciding the case properly but for the plaintiff or defendant as in addition the court shall only in the presence of these parties/party only be able to decide or pass any decree effortlessly and effectively. 

Consequences of Non - Joinder of Necessary Parties 

The non-presence of a necessary party means that those parties which are not present in the present suit and from which the relief is claimed are not present in the suit, because of which the court is not able to pass any appropriate of the effective judgment of decree. In these circumstances, the suit can be dismissed but does not have to dismiss. If the court found it legally viable and just, the court may grant relief in favour of the plaintiff by passing a decree regarding the suit between the parties.

The defendant has to claim a non-joinder of parties at the earliest, in the written statement. In the case of Laxmishankar Harishankar Bhatt vs. Yashram Vasta, the Supreme Court was of opinion that “the Court has the authority to refuse the dismissal of the suit on the mere grounds of non-joinder of party/parties as to the nonjoinder are the important party to the suit instituted as the plea of non-joinder found to be in huge indistinguishable. The Hon'ble court also upheld a significant principle that is that in any suit claiming property, until all the claiming parties or co-owner are party/parties to the suit are present of are parties to the suit, the suit shall stand unmaintainable. 

MISJOINDER:

The non-necessary parties or the misjoinder are parties of the party which are added mistakenly or irrelevantly added for irrelevant purposes and therefore there is no relief can be made. The presence of the necessary party/ parties are vital and important to pass any decree between the parties.

When any party or parties are added mistakenly to the suit under code of civil procedure, 1908 are terms as misjoinder. And the party which was added mistakenly to the suit or misjoinder has nothing to do so with the suit then in that condition the party added mistakenly are known as misjoinder. In addition, the case where the misjoinder has joined the suit, he court should not dismiss the suit instead, should or may order any decree as the order or decree should not bind the misjoinder and the claim or relief should be for only the necessary party only. As there is no need or any possibility to dismiss the suit on the grounds of misjoinder of the party as it does not affect any kind of interest of the parties to the suit.

Further, in addition to the above, the code of civil procedure deals with misjoinder under the provision of order 1 rule 3, as however, the necessary party are important for any decree or judgement pass by the court as the concept of non-joinder and misjoinder is always dependent upon the parties of the suit.

Misjoinder of causes of action can be further categorized into three parts namely:

  • Misjoinder of plaintiffs and causes of action.
  • Misjoinder of defendants and causes of action.
  • Misjoinder of the claim.

CONCLUSION

The non-joinder and misjoinder of the parties are not only fatal to the suit but also the parties are important for the suit to pass any decree or judgments. As stated in rule 9 of order 1 of CPC, 1908 which says that no suit can be defeated of dismissed on the grounds of misjoinder and non-joinder of the parties in the suit. The court is the one who has the power or authority to decide on the suit whether the suit is maintainable or not as non-joinder plays a major role in the passing of any further decree as non-joinder are the important parties to the suit without whom the proper decree cannot be passed or difficult to conclude for the hon’ble judge in the matter of the suit filed with the court. And as the misjoinder are the parties which are added with unintentionally or are not important to the suit filled or added mistakenly to the suit hence the presence of the misjoinder are not necessary and the present does not affect the decree passed by the hon’ble court.

Misjoinder and nonjoinder , order I rule 9 CPC (Comprehensive Notes)


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