FACULTY OF LAW

JAMIA MILLIA ISLAMIA

ASSIGNMENT FOR

CODE OF CIVIL PROCEDURE-II

ON

FRAMING OF SUIT

BY-

SHASHWAT PATHAK

B.A. L.L.B. (HONS.) [S.F.]

SEMESTER VIII, 4TH YEAR

STUDENT ID: 20165313

SUBMITTED TO –

DR. EAKRAMUDDIN

ASSOCIATE PROFESSOR
FACULTY OF LAW

JAMIA MILLIA ISLAMIA

 TABLE OF CONTENTS

SR. NO. TOPIC PAGE NO.

1. ACKNOWLEDGEMENT 3
2. INTRODUCTION 4-5
3. ORDER -1 PARTIES TO SUIT 6
4. CASE LAWS 6-14
5. ORDER II – FRAMING OF SUIT 14
6. CASE LAWS 14-19
7. CONCLUSION 20
8. BIBLIOGRAPHY & REFERENCES 22
 ACKNOWLEDGEMENT

I am overwhelmed in all humbleness and gratefulness to acknowledge my depth to all those

who have helped me to put these ideas, well above the level of simplicity and into something
concrete.

I would like to express my special thanks of gratitude to Respected Sir, DR.

EAKRAMUDDIN for his able guidance and support in completing this assignment on the
topic “FRAMING OF SUITS”,

which also helped me in gaining a lot of practical knowledge doing a lot of research and I
came to know about so many new things which is surely going to be helpful in my law
career. I am really thankful to them.

Any attempt at any level cannot be satisfactorily completed without the support and guidance
of my family and friends.
 FRAMING OF SUIT

Topics Covered-

Parties to the Suit (Order 1)

Framing of the Suit (Order 2)

INTRODUCTION – SUIT

‘Suit’: Meaning within the purview of the Civil Procedure Code, 1908 : The term ‘suit’ has
not been defined in the Civil Procedure Code, 1908. According to Chamber’s 20 th Century
Dictionary (1983), it is a generic term of comprehensive signification referring to any
proceeding by one person or persons against another or others in a court of law wherein the
plaintiff pursues the remedy which the law affords him for the redress of any injury or
enforcement of a right, whether at law or in equity.

In the Black’s Law Dictionary (7th Edition) this term is defined as the proceeding initiated by
a party or parties against another in the court of law. According to some other views, ‘suit’
includes appellate proceeding also; but it does not include an execution proceeding.

Ordinarily, suit under the CPC is a civil proceeding instituted by the presentation of a plaint.
Civil suit is the institution of litigation for enforcement of civil rights (or substantive rights, it
may be against state or individual). A suit is resulted into decree. Without suit there cannot be
a decree.

There are four essentials of a suit-

(1) Name of Parties (there must be two opposing parties) - at least two parties namely
the plaintiff & the defendant having no limitations on the number of said parties.
(2) Cause of Action – it is a set of facts or circumstances that a plaintiff is required to
prove. A person is party to a suit if there is a cause of action against him. The cause or
the set of events or circumstances which leads or resulted into presentation of a plaint
or filing a suit. In legal terms these are all the necessary facts which needs to be
proved with a view to obtain a decree, facts inclusive of the right and its infringement.
(3) Subject matter – there must be a subject matter (with what respect or aspect civil
dispute is). And as per Section-9. Courts to try all civil suits unless barred. The Courts
 shall (subject to the provisions herein contained) have jurisdiction to try all suits of a
civil nature excepting suits of which their cognizance is either expressly or impliedly
barred.
(4) Relief claimed by the plaintiff – specific mention of the relief which is been sought
by the plaintiff is necessary for the court to decide in furtherance of the matter in
question and hence Relief is of two types-1) specific relief and 2) alternative relief

Institution of Suit: the Provisions under the Civil Procedure Code, 1908 :

(1) Section 26(1), CPC says that every suit shall be instituted by the presentation of a
plaint or in such other manner as may be prescribed.
(2) Section 26 (2) provides that in every plaint, facts shall be proved by affidavit. Every
suit shall be instituted by presenting a (plaint in duplicate to the court) by amendment
of 1999.

Key Points :

 Every plaint shall comply the rules contained in O.VI & VII of C.P.C.
 A plaint shall not deemed to be duly instituted unless it complies the provisions of
Order. IV Rules. 1 & 2.
 Particulars of every suit has to be entered in a book called register of civil suit.
 When a suit has been instituted, a summon may be issued to the defendant to appear
and answer the claim and may be served in prescribed manner (as described in Order
V of C.P.C.) – within 30 days (amendment act of 1999) – S. 27.
PARTIES TO THE SUIT: ORDER I

 Order I Rule 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.

 Order I Rule 2 : "Power of court to order separate trails"

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

 Order I Rule 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.

 Order I Rule 3 : “Who are the necessary parties in a Suit”

A person who is not a party in the proceeding is not bound by any judgment or decree as the
order against him is in violation of the principles of natural justice. There may be a party
necessary, proper and/or improper, therefore the concept of joinder, non-joinder and mis-
joinder of parties has always been very relevant.

Nearly a Constitution Bench of the Supreme Court in Udit Narain Singh Malpaharia Vs
Member, Board of Revenue Bihar, 1, has explained as who are the necessary parties and
without whom the Suit shall not be maintainable. A necessary party is one without whom no
order can be made effectively. Proper party is one whose presence is necessary for a complete
and final decision. Suit fails for non-joinder of necessary parties. A Constitution Bench in

1
AIR 1963 SC 786
U.P. Awas Evam Vikas Parishad V. Gyan Devi2, reiterated the same view. In Iswar B.C.
Patel V. Harihar Behera3, the Apex Court observed that question of joinder of parties
involves joinder of causes of action.

Objection should be taken before trial court in order to provide opportunity to plaintiff to
rectify the defect and only if even then plaintiff persists in not impleading the party,
consequences on non-joinder may follow.

 Rule 3A Order I :"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, the court may order separate trials or makes such other order as may be expedient
in the interests of justice.

 Order I Rule 3B :"Conditions for entertainment of suits"

(1) No suit or proceeding for:
(a) declaration of title or any right over any agricultural land, with or without any
other relief; or
(b) specific performance of any contract for transfer of any agricultural land, with or
without any other relief, shall be entertained by any Court, unless the plaintiff or
applicant, as the case may be, knowing or having reason to believe that a return under
Section 9 of the Madhya Pradesh Ceiling on Agricultural Holdings Act, 1960 (No.20
of 1960) in relation to land aforesaid has been or is required to be filed by him or by
any other person before competent authority appointed under that Act, has impleaded
the State of Madhya Pradesh as one of the defendants or non-applicants, as the case
may be, to such suit or proceeding.
(2) No Court shall proceed with pending suit or proceeding referred to in sub-rule (1)
unless, as soon as may be, the State Government is so impleaded as a defendant or
non-applicant.
Explanation .-The expression "suit or proceeding" used in this sub-rule shall include
appeal, reference or revision, but shall not include any proceeding for or connected
with execution of any decree or final order passed in such suit or proceeding" - M.P.
Act 29 of 1984, S. 5 (14.8.1984).

2
AIR 1995 SC 724
3
AIR 1999 SC 1341
  Order I Rule 3 provides who are the necessary parties in a Suit.

A person who is not a party in the proceeding is not bound by any judgment or decree as the
order against him is in violation of the principles of natural justice. There may be a party
necessary, proper and/or improper, therefore the concept of joinder, non-joinder and
misjoinder of parties has always been very relevant.

Nearly a Constitution Bench of the Supreme Court in Udit Narain Singh Malpaharia Vs
Member, Board of Revenue Bihar4, has explained as who are the necessary parties and
without whom the Suit shall not be maintainable. A necessary party is one without whom no
order can be made effectively. Proper party is one whose presence is necessary for a complete
and final decision. Suit fails for non joinder of necessary parties

A Constitution Bench in U.P. Awas Evam Vikas Parishad V. Gyan Devi 5, reiterated the
same view. In Iswar B.C. Patel V. Harihar Behera 6, the Apex Court observed that question
of joinder of parties involves joinder of causes of action. Objection should be taken before
trial court in order to provide opportunity to plaintiff to rectify the defect and only if even
then plaintiff persists in not impleading the party, consequences on non-joinder may follow.

 Order I Rule 4 -"Court may give judgment for or against one or more of joint
parties"of - 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.

 Order I Rule 5 -"Defendant need not be interested in all the relief claimed"

It shall not be necessary that every defendant shall be interested as to all the relief claimed in
any suit against him.

 Order I Rule 6 -"Joinder of parties liable on same contract"

4
AIR 1963 SC 786
5
AIR 1995 SC 724
6
AIR 1999 SC 1341
The plaintiff may, at his option, join as parties to the same suit all or any of the persons
severally, or jointly and severally, liable on any one contract, including parties to bills of
exchange, hundis and promissory notes.

 Order I Rule 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.

 Order I Rule 8 -"One person may sue or defend on behalf of all in same interest"

(1) Where there are numerous persons having the same interest in one suit,-
(a) one or more of such persons may, with the permission of the court, sue or be sued,
or may defend such suit, on behalf of, or for the benefit of, all persons so
interested;
(b) the court may direct that one or more of such persons may sue or be sued, or may
defend such suit, on behalf of, or for the benefit of, all persons so interested.
(2) The court shall, in every case where a permission or direction is given under sub-rule
(1), at the plaintiffs expense, give notice of the institution of the suit to all persons so
interested, either by personal service, or, where, by reason of the number of persons or
any other cause, such service is not reasonably practicable, by public advertisement,
as the court in each case may direct.
(3) Any person on whose behalf, or for whose benefit, a suit is instituted, or defended,
under sub-rule (1), may apply to the court to be made a party to such suit.
(4) No part of the claim in any such suit shall be abandoned under sub-rule (1), and no
such suit shall be withdrawn under sub-rule (3) of rule 1 of Order XXIII, and no
agreement, compromise or satisfaction shall be recorded in any such suit under rule 3
of that Order, unless the court has given, at the plaintiffs expenses notice to all
persons so interested in the manner specified in sub-rule (2).
(5) Where any person suing or defending in any such suit does not proceed with due
diligence in the suit or defence, the court may substitute in his place any other person
having the same interest in the suit.
(6) A decree passed in a suit under this rule shall be binding on all persons on whose
behalf, or for whose benefit, the suit is instituted, or defended, as the case may be.
 Explanation: For the purpose of determining whether the persons who sue or are sued,
or defend, have the same interest in one suit, it is not necessary to establish that such
persons have the same cause of action as the persons on whose behalf, or for whose
benefit, they sue or are sued, or defend the suit, as the case may be.
 Order I Rule 8A -"Power of court to permit a person or body of persons to
present opinion or to take part in the proceedings"

While trying a suit, the court may, if satisfied that a person or body of persons is interested in
any question of law which is directly and substantially in issue in the suit and that it is
necessary in the public interest to allow that person or body of persons to present his or its
opinion that question of law, permit that person or body of persons to present such opinion
and to take such part in the proceedings of the suit as the court may specify.

Order I, Rule 8 provides that persons may be impleaded in representative capacity where they
are in large number but having the same interest with the provision of the court. (Diwakar
Shrivastava & Ors. V. State of Madhya Pradesh & Ors, AIR 1984 SC 468).

 Order I Rule 9 -"Misjoinder and nonjoinder"

No suit shall be defeated by reason of the misjoinder or nonjoinder 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 nonjoinder of a necessary party. Order I,
Rules 9 and 10 provide that in view of mis-joinder and non-joinder of parties, court may
proceed and decide the case. However, the judgment/decree shall not be binding upon a non-
party. A person claiming an independent title and possession adversely to the vendor is not a
necessary party as a proper decree can be passed in his absence. (Kasturi V. Iyyamperumal
& Ors, AIR 2005 SC 2813).

In Ranjeet Mal Vs General Manager, Northern Railway, New Delhi & Anr, AIR 1977 SC
1701, the Apex Court considered a case where the writ petition had been filed challenging the
order of termination from service against the General Manager of the Northern Railways
without impleading the Union of India. The Apex Court held asunder:
 “The Union of India represents the Railway Administration. The Union carries
administration through different servants. These servants all represent the Union in regard to
activities whether in the matter of appointment or in the matter of removal. It cannot be
denied that any order which will be passed on an application under Article 226 which will
have the effect of setting aside the removal will fasten liability on the Union of India, and not
on any servant of the Union. Therefore, from all points of view, the Union of India was
rightly held by the High Court to be a necessary party. The petition was rightly rejected by
the High Court.”

While considering the similar view in Chief Conservator of Forests, Government of A. P.

V. Collector & Ors7; the Supreme Court accepted the submission that writ cannot be
entertained without impleading the State if relief is sought against the State. The Apex Court
had drawn the analogy from Section 79 of the Code of Civil Procedure, 1908, which directs
that the State shall be the authority to be named as plaintiff or defendant in a suit by or
against the Government and Section 80 thereof directs notice to the Secretary of that State or
the Collector of the district before the institution of the suit and Rule 1 of Order 27 lays down
as to who should sign the pleadings. No individual officer of the Government under the
scheme of the constitution or under the Code of Civil Procedure, can file a suit nor initiate
any proceeding in the name and the post he is holding, who is not a juristic person.

The Court also considered the provisions of Article 300 of the Constitution which provide for
legal proceedings by or against the Union of India or State and held that in a suit by or
against the Government, the authority to be named as plaintiff or defendant, as the case may
be; in the case of the Central Government, the Union of India and in the case of State
Government, the State, which is suing or is being sued.

While deciding the said case, a heavy reliance has been placed by the Court upon its earlier
judgment in Vijay Pratap V. Sambhu Saran Sinha8, wherein it was held that the scope of the
suit cannot be enlarged by addition of a party and suit for specific performance cannot be
converted into a suit for title and possession.

In Sumtibai & Ors. V. Paras Finance Co. Regd. Partnership Firm 9, the Apex Court held
that if a party can show fair semblance of title and interest, he is entitled to make an
application for impleadment.
7
(2003) 3 SCC 472
8
AIR 1996 SC 2755
9
AIR 2007 SC 3166
In Sunil Gupta V. Kiran Girhotra & Ors.10, the Apex Court held that a probate can be
granted only to an executor appointed by a Will. A transferee of a property during the
pendency of such a proceeding is not a necessary party.

Similar view has been reiterated by the Apex Court in Krishna Kumar Birla V Rajendra
Singh Lodha & Ors.11,; and Babulal Khandelwal & Ors. V. Balkishan D. Sanghvi &
Ors.12,.

 Order I Rule 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 joinded,
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

10
(2007) 8 SCC 506,
11
(2008) 4 SCC 300
12
AIR 2009 SC 67
proceedings as against any person added as defendant shall be deemed to have begun only on
the service of the summons.

 Order I Rule 10A -"Power of Court to request any pleader to address it"

The Court may, in its discretion, request any pleader to address it as to any interest which
is likely to be affected by its decision on any matter in issue in any suit or proceeding, if
the party having the interest which is likely to be so affected is not represented by any
pleader.

In Bhupendra Narayan Sinha Bahadur V. Rajeswar Prasad Bhakat & Ors 13., the Privy
Council held that the Court has ample power to remove technical objections to remedy the
defects under Order 1 Rule 10 CPC by adding the Performa defendant as co-plaintiff. It can
be done at the appellate stage also. Such a course should be adopted where it is necessary for
a complete adjudication upon the question involved in the suit and to avoid multiplicity of
proceedings.

While considering the application for implement under Order 1, Rule 10, CPC, the Court
must keep in mind that plaintiff is the sole architect of his plaint and he has a right to choose
his own adversary against whom he seeks relief. Mere apprehension of any party that the
plaintiff and defendant of the suit may collusively get their suit decided remains unfounded as
whatever may be the judgment and order in a suit it cannot be binding on him as he was not a
party in the suit. Such judgment or order shall have no legal effect so far as the person who is
not a party in the case is concerned.

Implement may be necessary to avoid multiplicity of the suit, but it cannot be the sole
ground. Facts and circumstances of the case must show that unless a person is impleaded in
the suit there is likelihood of further litigation in the same matter on the same issues.

The plaintiff being the master of the suit cannot be compelled to file the same against whom
he does not wish to fight and against whom he does not claim any relief. It is only in
exceptional circumstances where the Court finds that the addition of a new party is absolutely
necessary to enable it to adjudicate effectively and completely the matter in controversy
between the parties it will added him as a party. ( Banarsi Dass Durga Prashad V. Panna
Lal Ram Richhpal Oswal & Ors

13
AIR 1931 PC 162
Order I Rule 11 -"Conduct of suit"

The Court may give the conduct of a suit to such persons as it deems proper.

 Order I Rule 12 -"Appearance of one of several plaintiffs or defendants for

others"

(1)Where there are more plaintiffs than one, any one or more of them may be authorized by
any other of them to appear, plead or act for such other in any proceeding; and in like
manner, where there are more defendants than one, any one or more of them may be
authorized by any other of them to appear, plead or act for such other in any proceeding.
(2) The authority shall be in writing signed by the party giving it and shall be filed in Court.

 Order I Rule 13 -"Objections as to nonjoinder or misjoinder"

All objections on the ground of nonjoinder or misjoinder 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.

FRAMING OF SUIT: ORDER II

 Order II Rule 1 -"Frame of suit"

Every suit shall as far as practicable be framed so as to afford ground for final decision upon
the subjects in dispute and to prevent further litigation concerning them.

 Order II Rule 2 -"Suit to include the whole claim"

(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in
respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order
to bring the suit within the jurisdiction of any Court.

(2) Relinquishment of part of claim- Where a plaintiff omits to sue in respect of, or
internationally relinquishes, any portion of his claim, he shall not afterwards sue in respect of
the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs- A person entitled to more than one relief in
respect of the same cause of action may sue for all or any of such reliefs; but if he omits,
except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for
any relief so omitted.
Explanation- For the purposes of this rule an obligation and a collateral security for its
performance and successive claims arising under the same obligation shall be deemed
respectively to constitute but one cause of action.
Illustration
A lets a house to B at a yearly of rent Rs. 1200. The rent for the whole of the, years 1905,
1906 and 1907 is due and unpaid. A sues B in 1908 only for the rent due for 1906. A shall not
afterwards sue B for the rent due for 1905 or 1907.

 Order II, Rule 2 provides that Suit must include the whole claim.

If a relief which could have been claimed is not claimed, party cannot claim it in a subsequent
Suit.( Mohd Khalil Khan V. Mahbub Ali Mian 14, and Alka Gupta V.Narendra Kumar
Gupta 15

The rule is directed to securing the exhaustion of the relief in respect of a cause of action and
not to the inclusion in one and the same action of different causes of action, even though they
arise from the same transaction. One great criterion, when the question arises as to whether
the cause of action in the subsequent suit is identical with that in the first suit, is whether the
same evidence will maintain both actions.

A Constitution Bench of Supreme Court in Gurubux Singh V. Bhooralal16, held that even if
a party does not pray for the relief in the earlier writ petition, which he ought to have claimed
in the earlier petition, he cannot file a successive writ petition claiming that relief, as it would
be barred by the principle of constructive res judicata enshrined in Explanation IV to Section
11 and Order 2 rule 2 of the Code of Civil Procedure. In Order 2 rule 2 C.P.C., as has been
explained, in unambiguous and crystal clear language by the Supreme Court in M/S D.
Cawasji & Co.V. State of Mysore17,)

In Sandeep Polymers (P) Limited V. Bajaj Auto Limited & Ors. 18, the Apex Court held that
this provision is directed to secure the exhaustion of the relief in respect of a cause of action
and not to inclusion in one and the same action of different causes of action, even though they
14
AIR 1949 PC 78
15
(2010) 10 SCC 141).
16
AIR 1964 SC 1810
17
AIR 1975 SC 813.
18
(2007) 7 SCC 148.
arise from the same transaction. The fresh suit is permissible to be filed in a court of
competent jurisdiction in respect of a cause of action for which the original court did not have
jurisdiction.

In Dadu Dayalu Mahasabha, Jaipur (Trust) V. Mahant Ram Niwas & Anr. 19, the Apex
Court observed that even if the second suit has been filed in view of the observation made by
the Supreme Court while dealing with an appeal against the order passed in first appeal, the
trial Court has full power to reject the said plaint being barred by Order II Rule 2 or the
provisions of Section 11 C.P.C.

 Order II Rule 3-"Joinder of causes of actions”

(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 plaintiffs 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.

This rules clarifies that any party subject to the conditions provided can be joined in the suit
if the Court deems fit. Order 2 Rule 3 was further explained by the Honourable Supreme
Court in 2017 in the seminal case of Kazimunnisa (dead) by L.R. vs. Zakia Sultana (dead)
by L.R. and Ors.), where it was held by the Supreme Court that, “This was an appropriate
case where the provisions of Order II Rule 3 of the Code, which deals with joinder of causes
of action, could have been resorted to by the Court suo–moto for clubbing the two cases as
the facts involved in both the cases satisfied the attributes of Order II Rule 3 of the Code.

This view was supported by numerous High Courts even before this landmark judgement. In
Allahabad High Court in the year 1942 in the case of Karan Sinqh and others vs. Lala
Kunwar Sen and others, being one of the earlier verdicts delivered in this regard, Justice
James Joseph Whittle sea Allsop observed that, “It is necessary that the right to relief should
arise out of the same act or transaction or series of acts or transactions and this implies, in my
judgment that the acts or transactions, where they are different, should be so connected as to

19
2008 AIR SCW 3324
constitute a single series which could fairly be described as one entity or fact which would
constitute a cause of action against all the Defendants jointly. Whether this necessary
condition exists in any particular case would, of course, depend upon the nature of the case
but I am satisfied that this at least is necessary that the case should be such that it could be
said that the Court in which the suit was instituted had local jurisdiction in the first instance
to deal with the controversies arising between the Plaintiffs and each of the Defendants.

 Order II Rule 4 -"Only certain claims to be joined for recovery of immovable

property"

No cause of action shall, unless with the leave of the Court, be joined with a suit for the
recovery of immovable property, except-
(a) claims for mesne profits or arrear of rent in respect of the property claimed or any part
thereof;
(b) claims for damages for breach of any contract under which the property or any part
thereof is hold; and
(c) claims in which the relief sought is based on the same cause of action:
Provided that nothing in this rule shall be deemed to prevent any party in a suit for
foreclosure or redemption from asking to be put into possession of the mortgaged property.

From a perusal of the aforesaid, no leave of the court is required under Order II Rule 4 of the
C.P.C to include the claim of damages. This view of mine is supported by a decision of the
Supreme Court in the case of Shiv Kumar Sharma v. Santosh Kumari 20, wherein the Court
has held as under:-

 In terms of Order II, Rule 2 of the Code, all the reliefs which could be claimed in the suit
should be prayed for. Order II, Rule 3 provides for joinder of causes of
action. Order II, Rule 4 is an exception thereto. For joining causes of action in respect of
matters covered by Clauses (a), (b) and (c) of Order II, Rule 4, no leave of the court is
required to be taken. Even without taking leave of the court, a prayer in that behalf can be
made.

A suit for recovery of possession on declaration of one's title and/or injunction and a suit for
mesne profit or damages may involve different cause of action. For a suit for possession,
there may be one cause of action; and for claiming a decree for mesne profit, there may be

20
(2007) 8 SCC 600.
another. In terms of Order II, Rule 4 of the Code, however, such causes of action can be
joined and therefor no leave of the court is required to be taken. If no leave has been taken, a
separate suit may or may not be maintainable but even a suit wherefor a prayer for grant of
damages by way of mesne profit or otherwise is claimed, must be instituted within the
prescribed period of limitation. Damages cannot be granted without payment of court fee. In
a case where damages are required to be calculated, a fixed court fee is to be paid but on the
quantum determined by the court and the balance court fee is to be paid when a final decree is
to be prepared.

 Order II Rule 5 -"Claims by or against executor, administrator or heir"

No claim by or against an executor, administrator or heir, as such, shall be joined with claims
by or against him personally, unless the mentioned claims are alleged to arise with reference
to the estate in respect of which the plaintiff or defendant sues or is sued as executor,
administrator or heir, or are such as he was entitled to, or liable for, jointly with the deceased
person whom he represents.

 Order II Rule 6 -"Power of Court to order separate trials"

Where it appears to the Court that the joinder of causes of action in one suit may embarrass or
delay the trial or is otherwise inconvenient, the Court may order separate trials or make such
other order as may be expedient in the interests of justice.

In Kanda v. Waghu21, In this decision, it was held that it is an absolute necessity that the
determinations in a case should be founded upon a case to be found in the pleadings or
involved in or consistent with the case thereby made.

In Eshenchunder Singh v. Shamachurn Bhutto 22, Lord Westbury described it as an absolute

necessity that the determination in a cause should be founded upon a case to be found in the
pleadings or involved in or consistent with the case thereby made. He then relied upon the
decision in Sheodhari v. Suraj Prasad Singh23, of the Patna High Court. In the said decision,
it was held that Order 2, Rule 6 has to be stuck to where the defendants in his written
statement sets up title to the disputed lands as the nearest reversionary, the Court cannot, on
failure of the defendant to prove his case, make out a new case for him which is not only not
made in the written statement but which is wholly inconsistent with the title set up by the
21
AIR 1950 PC 68.
22
11 MIA 7 at p. 20
23
AIR 1954 SC 758
defendant, that the defendant was holding under a shikmi settlement from the nearest
reversioner.

In Jugal Kishore Kundu v. Narayan Chandra Kundu24, this Court held that Court cannot
make out a new case not made out in the pleading.
 Order II Rule 7 -"Objections as to mis-joinder"

All objections on the ground of misjoinder of causes of action 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.

In Padmanabha v. Aiyappan Pillai 25, in which it is held that in a suit to enforce a mortgage,
ordinarily the necessary parties are those interested in the properties primarily, viz., the
mortgagors and their successors in interest and that persons claiming title independently of
the mortgagors are ordinarily not necessary or even proper parties to a mortgage suit. In that
case, the plaintiff himself raised the objection that defendants 20 and 21 were unnecessary
parties to the suit. Then it was held that it would be improper to go into the question of
paramount title since it was considered to be neither just nor convenient. The portions of the
judgment of the court below relating to title paramount were deleted and the question was left
open. It is apparent from the observations made in the judgment in that case that it was not
laid down as an inflexible rule that the question of paramount title cannot be gone into in a
mortgage suit. The observations in AIR 1941 Nag 133 cited by the learned single Judge also
show that under certain circumstances the question of paramount title can be gone into in a
suit on mortgage, for example, when all the parties desire it.

This also shows that even according to the learned Judge it is not a matter going to the root of
jurisdiction of the Court to try the issue of paramount title in a mortgage suit. The nine
principles stated in AIR 1970 Andhra Pradesh 153 under Order 1, Rule 13 of the Code of
Civil Procedure, unless the objection with regard to misjoinder has been taken at the earliest
opportunity and, at or before settlement of issues, the party shall be deemed to have waived
it. Similarly if the objection with regard to misjoinder of causes of action has not been taken

24
AIR 1982 Cal 342
25
AIR 1951 Trav-Co 133.
at the earliest opportunity, it shall be deemed to have been waived as provided
under Order 2, Rule 7 of the Code of Civil Procedure.

CONCLUSION-

With duties comes some responsibilities and hence the very breach of any duty is said to
commit a wrongful act and further these wrongful acts have been categorically divided as
Public Wrong and Private Wrong. Public wrong is deemed to be committed against the
society and the Private wrong, against individuals. The gravity of the former is greater than
that of the latter. The first category is termed under the Law as ‘crime’ governed by the
Criminal Laws (Substantive and Procedural) and the second category, as ‘civil wrong’
governed by the Civil Laws. In case of civil wrong, the remedy is the compensation either
liquidated or unliquidated damages; the remedial measures ensured to the people is based on
the Latin maxims damnum sine injuria (damage without injury), injuria sine damnum (injury
without damage) and ubi jus ibi remedium means when there is a right there is a remedy. And
such remedial measures are enforced through only the institution of suit.

The Code of Civil Procedure, 1908 is the procedural or the adjective law of India in civil
matters dealing with Sections 26 and Sections 35-35B read with Orders I (Parties to the Suit),
II (Framing of the Suit), IV (Institution of the Suit), VI (Pleadings) and VII (Plaint) provide
the procedural principles and rules regarding institution of suits.

The word ‘suit’ has wider application. There is a little difference between the suits under the
CPC 1908 and the other civil suits. This is under the CPC the suits is instituted by the
presentation of the plaint which has particular format and has been enshrined with various
essentials or prerequisites to be followed.

In a civil suit, the presence of both the plaintiff, who files the suit, and the defendant, who is
sued, is necessary. In each case there are two categories; first one is the necessary party and
the other is proper party. Where the number of plaintiff/defendant is one, no dispute arises
regarding their representation; but some uniform rules become mandatory if this number
crosses this limit. Order 1 contains these rules in respect of Joinder, Mis-Joinder of Parties
and Non Joinder of parties.

Cause of action may be defined as ‘a bundle of essential facts, and hence is provided in Order
2, under various rules. These facts are necessary for the plaintiff to prove in order to
succeed.’ A cause of action is the foundation of a suit. A cause of action must include some
act done by the defendant since in the absence of such an act no cause of action can possibly
accrue. If a plaint does not disclose a cause of action, the Court will reject that plaint and if
any cause of action is accrued the relief the relief sought by the Plaintiff Relief is the legal
remedy for wrong.

According to Rule 1 of Order 2 every suit shall as far as practicable be framed so as to afford
ground for final decision upon the subjects in dispute and to prevent further litigation
concerning them. Technicalities and proper format proves down that the procedural
formalities have been made with much complexity and critically in order to ensure proper
justice and so that it can carefully be checked upon whether the case is made out hence, to
restrain vexatious and false suits in the course of administration of justice.

BIBLIOGRAPHY & REFERENCES

Statutes-

 CODE OF CIVIL PROCEDURE, 1908.

Websites Referred-
 Manupatrafast.com (last visited on May, 01, 2020)
 jmielibrary.informaticsglobal.com (last visited on May, 01, 2020)
 indiankanoon.com (last visited on May, 01, 2020)
 Lawnotes4u.com (last visited on May, 01, 2020)
 Legalserviceindia.com (last visited on May, 01, 2020)