SVKM’s

JITENDRA CHAUHAN COLLEGE OF LAW

The Code of Civil Procedure, 1908

NON-JOINDER AND MISJOINDER PARTIES TO

SUITS.

SUBMITTED BY: NIRAV HITESH DOSHI

T.Y.LL.B
Academic Year: 2021 – 2022

ROLL NO: D-189

SUBJECT: The Code of Civil Procedure, 1908
SEMESTER: V

SUBMITTED TO:

1
 ACKNOWLEDGEMENT

I record my deep sense of obligation and gratitude to the Professors of Jitendra Chauhan
College of Law, Mumbai, for their constant guidance and persistent encouragement in the
preparation of this humble research. It is my pious duty to express my deep obligation
towards my respected teacher’s for their kindness, grace and many sided benevolences.

I am deeply indebted to all Indian and foreign writers and judges whose writings and
decision have been duly cited in this work and have given me inspiration and light for
preparing this work. I acknowledge my gratitude to those authors also, whose works, though
might not have been citied in this research, and helped me enormously in formulating my
views and enriching my thoughts.

I extend my cordial gratitude to my parents and all family members.

I express my gratitude to the Librarian and all other staff member of Law Library of
Jitendra Chauhan College of Law, Mumbai, for their Co-operation.

2
 Table of Contents
INTRODUCTION................................................................................................3
RULE OF JOINDER............................................................................................3
NECESSARY AND PROPER PARTIES............................................................5
NON – JOINDER OF PARTIES..........................................................................6
CONSEQUENCES OF NON - JOINDER OF NECESSARY PARTIES........6
MISJOINDER OF PARTIES...............................................................................7
OBJECTIONS AS TO MISJOINDER AND NON-JOINDER OF PARTIES.. . .9
CASE LAW........................................................................................................10
CONCLUSION...................................................................................................11
BIBLIOGRAPHY...............................................................................................12

3
INTRODUCTION
Order 1 of the Civil Procedure Code, 1908,1 deals with the parties to the suit. ‘Parties’ is
one of the essential of the suit. It also deals with the joinder, misjoinder, non-joinder of
parties, addition, necessary party and proper party.

A suit is a proceeding by which an individual person that remedy which the law affords. In
every suit there must be at least one plaintiff and one defendant. Every suit must contain the
cause of action, which refers to the cause or set of circumstances which leads up to a suit.
The subject matter of the suit is the right or property claimed in the suit. The court
adjudicates upon the right of the parties with regard to the subject matter in dispute. The
relief claimed should be specifically stated in the plaint.

Plaintiffs and Defendants are two parties to the suit but there can be multiple plaintiffs and
defendants and then there will be question of joinder of parties. It may be joinder of plaintiffs
[O.I.R.1]2 or it may be joinder of defendants [O.I.R.3]3.

In this context, a party may be a necessary party or a proper party. Necessary means
mandatory. In other words, Necessary Party is one without whom no order can be made
effectively. But parties in whose absence any effective order can be made but whose
presence is necessary for final and complete disposal of the case, then he is a proper party.
For e.g. In a suit for eviction against tenant, tenant is a necessary party but sub-tenant will be
considered a proper party. In partition suits, Coparceners are necessary parties. Coparceners
are the owner of Joint Hindu properties. In a land acquisition case where government has
acquired land for local authority the government is a necessary party because dispute
between government and the party whose land is acquired and the local authority is a proper
party.

RULE OF JOINDER

JOINDER OF PLAINTIFF [O.I R.1]

JOINDER OF PARTIES:
JOINDER OF DEFENDANT [O.I R.3]

1
http://www.bareactslive.com/ACA/ACT379.HTM
2
Order 1 Rule 1 of CPC 1908
3
Order I Rule 3 of CPC 1908

4
If the cause of action arises in favour of or against multiple persons then the question of
joinder of plaintiff and defendant arises. If the act is done by a single individual against a
single individual then the question of joinder of parties does not arise. Here, we essentially
deal with joinder of plaintiffs and defendants. The question of joinder of parties is a
matter of procedure and not of substantive rights.

The primary object of joinder of parties is to ensure that all suits are decided finally and
conclusively on merits in presence of all parties.

When can Joinder of Parties Take Place?

‘Joinder of Parties’ means joining several parties as plaintiffs or defendants in the same
suit. All or any of those persons can be joined to a suit as plaintiffs or defendants in whom
the right to any relief is alleged to exist, or who is alleged to possess any interest in the
subject-matter of litigation, or in the opinion of the court is a proper or a necessary party.

The question of joinder of parties may arise either as regards the plaintiffs or as regards the
defendants.

Order 1 of CPC 1908, deal with the subject of parties to suit and among other things with
the joinder, mis-joinder and non-joinder of parties and to a certain extent with the joinder of
the cause of action.

Joinder of Plaintiffs:

All persons may be joined in one suit as plaintiffs according the conditions required under
Rule 1 of Order 14. The conditions which are required to be fulfilled are that the right to
relief alleged to exist in each plaintiff arises out of the same act of transaction; and the case
is such of a character that, if such person brought separate suits, any common question of
law or fact would arise.

Joinder of Defendants:

On the other hand, a person can be joined as a defendant according to the provisions of Rule
3 of Order 15. The conditions to be required to be satisfied in the case of defendant are that
the right to relief alleged to exist against them arises out of the same act of transaction; and

4
Supra 1
5
Ibid

5
the case is of such a character that, if separate suits were brought against such person, any
common question of law or fact would arise.

According to Order 1 of CPC, “All person may be joined in one suit as plaintiff in whom
any right to relief in respect of or arising out of the same act or transaction or series of acts or
transactions as alleged to exist whether jointly, severally or in the alternative where if such
persons brought separate suits any common question of law of fact would be arise”.

Objects:

 To avoid Multiplicity of suits;

 To provide speedy trail;
 To secure the time;
 To avoid from expenditure of more money Suit, parties to suit.

Definitions of parties:

A person can become a party to a suit only by his name appearing on the record oh the suit as
a party such as plaintiff and defendant.

Who can be parties?

Only a natural and juristic person can be a party to the suit.

NECESSARY AND PROPER PARTIES

A. Who Are the Necessary Parties to A Civil Suit?
A necessary party is a party without impleading whom a claim cannot be legally settled by
court. In other words, in the absence of a necessary party, no effective and complete decree
can be passed by the court. There is no standard for determining who are the necessary
parties to a suit. This shall depend upon the facts and circumstances of each case. For
instance, in a suit filed against a public servant in relation to his public functions, the
government shall have to be impleaded but, in a suit, filed against the same person in relation
to his not paying maintenance to his divorced wife, the government shall not be a necessary
party.

As already mentioned, there is a distinction between necessary and non-necessary (proper)

parties. In the absence of a necessary party, no order can be effectively passed by the court.

6
However, a proper party is one in whose absence an effective order can be passed; whose
presence is not needed for a complete and effective adjudication.

B. Test for Determining the Necessary Parties to A Civil Suit:

In Benares Bank Ltd. V. bhagwandas6, the full bench of the High Court of Allahbad laid
down two tests for determining the questions whether a particular party is necessary party to
the proceedings:

1. There must be right to some relief against such party in respect of the matter involved
in the proceedings in question; and
2. It should not be possible to pass an effective decree in the absence of such a party.

The above tests were described as true tests by Supreme Court in Deputy Commr., Hardoi
V. Rama Krishna.7

NON – JOINDER OF PARTIES

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 parties 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 2.8

In contrast, the necessary parties are 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

6
AIR 1946 All 269
7
1953 AIR 521, 1954 SCR 506
8
Supra 1

7
circumstances, the suit can be dismissed but does not have to be dismissed. 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 Vasta9, 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 non-joinder 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 or are parties
to the suit, the suit shall stand unmaintainable. 

The general principle of law is that the plea of non-joinder should be raised at the earliest
available opportunity. However, an exception is partition suits, in which the plea of non-
joinder of parties can be raised at any point of time. The reason for this, as laid down in
Shanmugham v. Saraswati10 is that this materially affects the subject - matter involved in
the suit.

MISJOINDER OF PARTIES
The non-necessary parties or the misjoinder are parties of the party which are added
mistakenly or irrelevantly for irrelevant purposes and therefore there is no relief can be
made. The presence of the necessary party/ parties is 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 with the suit then in that condition the party added mistakenly
are known as misjoinder. In addition, in the case where the misjoinder has joined the suit, the
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.

9
AIR 1993 SC 1587,
10
2008 (2) CTC 573

8
Further, in addition to the above, the code of civil procedure deals with misjoinder under the
provision of order 1 rule 311, as however, the necessary party are important for any decree or
judgement pass by the court as the concept of misjoinder and nonjoinder in CPC, 1908 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.

where in a suit there are two or more plaintiffs and two or more causes of action, the
plaintiffs should be jointly interested in all the causes of action. If the plaintiffs are not
jointly interest in all the cause of action, the case is one of misjoinder of plaintiffs and cause
of action. The objection on the ground of misjoinder of plaintiffs and causes of action should
be taken at the earliest opportunity.

 Misjoinder of defendant and causes of action: Multifarious

Where in a suit, there are two or more defendants and two or more cause of action, the suit
will be bad for misjoinder of defendants and causes of action, if different causes of action are
joined against different defendants separately. Such a misjoinder is technically called
multifariousness. The objection on the ground of multifariousness should be taken at the
earliest opportunity.

In a suit for recovery of loan advanced on an overdraft account, the joinder of a claim against
the agent on the ground that he had acted in excess of his authority and against the managing
director on the ground that he had approved of it would render the action multifarious. 

In a case, where the plaintiff purchased the suit house in which two persons were residing as
tenants separately and he brought a suit for eviction against both the defendant-tenants
claiming different relief against them. It was held that the suit was bad for multifariousness.

 Misjoinder of claims founded on several causes of actions

Order 2 of the code of Civil Procedure Code 12 deals with the misjoinder of claims founded
on several claims. According to the rule, every suit must include the whole claim which the
plaintiff is entitled to make in respect of that cause of action.

11
CPC 1908
12
http://www.bareactslive.com/ACA/ACT379.HTM

9
The question whether or not there is misjoinder of parties has to be decided on the basis of
the averments made in the plaint and not reference either to the written statement or on the
evidence led by the parties.

Rule 9 expressly and unequivocally declares that no suit is liable to be dismissed by reason
of misjoinder of parties. In other words, misjoinder of parties is not fatal to the suit. It is mere
irregularity covered by sections 99 and 99-A of the Code. Hence the various high courts, on
the question of misjoinder of parties held that no decree shall be reversed or substantially
varied, nor shall a case be remanded in appeal inter alia on account of misjoinder of parties,
not affecting the merits of the case or the jurisdiction of the court. Where there is a
misjoinder of parties, the name of the plaintiff or the defendant who has been improperly
joined may be struck out under rule 10 and the case may be proceed with.

In Patasibai V. Ratanlal,13 an application for the correction of misdescription of the

defendant (in the plaint) was allowed, the correction could not be incorporated in the plaint.
But, the misdescription did not mislead any party. In fact, the written statement and the
documents in appeal carried the correct name. it was held that decree was valid.

OBJECTIONS AS TO MISJOINDER AND NON-JOINDER OF PARTIES.

All objections on the ground of non-joinder or misjoinder of parties must be taken at the
earliest opportunity, otherwise they will be deemed to have been waived. But, if the
objections as to non-joinder of necessary party have been taken by the defendant at the
earliest stage and the plaintiff declines to add the necessary party, he cannot subsequently be
allowed in appeal to rectify the error by applying the amendment.

Rule 13 of Order 1 of the Code of Civil Procedure:

All objections on the ground of non-joinder 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.

When objection of non-joinder raised:

An issue of non-joinder of a necessary party can be raised in appellate court. An objection as

to non-impleadment of a necessary party, which was not taken in the first appeal cannot be
allowed to be taken at the stage of second appeal.
13
1990 SCC (2) 42

10
When Objection of misjoinder raised:

Objection as to misjoinder, when not raised in court of first instance is no ground for
reversing a decree when they do not affect the merits of the case. The plea cannot be raised
for the first time in the second appeal. When objection to want of parties is not raised by the
defendant, it must be deemed to have been waived. But, court can add one as a party if it
thinks it necessary. Where a necessary party is not impleaded, the objection even if not taken
in the trial court, cannot be said to be waived. It can be raised even in revision.

Offers the Settlement of issues:

The word ‘unless the ground objection has subsequently arisen’ allows objecting even after
the settlement of issues. In a partition suit, all coparceners must be joined as parties, even
though some of them may be born after the institution of the suit. In the same way, a woman
who is a party to a suit is married after the settlement of issues and the nature of the suit is
such that the husband is a necessary party, the plaintiff should make the husband a party and
the defendant may raise this objection even though it is after the settlement of issues.

CASE LAW
 Pravin v. State of Maharashtra,14

The government bought a plot of land under a statute, and afterwards, sold it to the appellant.
The sale was declared invalid by the Supreme Court. The original owner sought relief. It was
held that the party which had purchased the plot of land from the government was not a
necessary party, because no relief was claimed from it.

 Gujarat SRTC v. Saroj,15

The legal representatives of the deceased driver of a car which collided with a SRTC bus,
claimed compensation from the SRTC. In the present suit, it was held that the owner of the
car and its insurer were not necessary parties since no relief had been claimed from them.
Thus, the nature of relief claimed is important in deciding who is a necessary party.

14
2001 CriLJ 3417
15
2001 (2) SCC 9

11
  Mosley v. General Motors Corp. Ltd,16

In this land mark case the plaintiff (Nathaniel Mosley) along with 9 other persons joined in
bringing an action individually and as class representatives alleging their rights under a
statute were denied by General Motors, Local 25, United Automobile, Aerospace and
Agriculture Implement Workers of America (Union), simply by reason of their colour and
race. The plaintiffs intended to bring about a joinder of defendants. On this point, the district
court held that there could not be a joinder of defendants since there is no right of relief out
of the same transaction, and issues of fact/law involved are common to all the plaintiffs.

 General Manager, South Central Railway, Secunderabad v. AVR Siddhantti,17

In this case, there was a non-joinder of parties. The plaintiff claimed relief against the
Railways by impleading it through its representatives. The appellants contended that the
employees who were likely to be affected by the decision had not been impleaded. Further, it
was contended that since they were necessary parties, their non-joinder was fatal to the
petition. However, the Supreme Court turned down this preliminary objection, holding that
the relief was being claimed against the Railways only and it had been impleaded through its
representative. Employees who were likely to be affected by the decision were at best proper
parties. Their non-joinder could not be said to be fatal to the petition. This supports the
proposition that a necessary party is one against whom relief is claimed.

 Praveen Bhatia v. Dr. M Ghosh,18

In this case, the plaintiff filed a suit against a doctor due to whose negligence his wife had
died. The doctor was held to be a necessary party (since relief has been claimed from him).
But the insurance company with whom the insurance has been obtained is neither a
necessary nor a proper party, since no relief has been claimed from it.

CONCLUSION
As explained above, non-joinder or mis-joinder of parties is not fatal to the suit. Order 1,
Rule 9 of the Code of Civil Procedure, 1908, lays down that no suit shall defeated by
reason of the misjoinder or non-joinder of parties, and the court may in every suit deal with
the matters of controversy so far as the regards the rights and interests of the parties actually
before it. The only exception provided to this Rule is furnished by the general Rule that a
16
417 F.2d 1122
17
1974 SCC (4) 335
18
(1999) 2 MLJ 690

12
court will refrain from passing a decree which would be ineffective and infructuous. To sum
up, in the case of non-joinder of necessary parties the Court cannot pass an effective decree
in their absence. In such a case, the suit cannot proceed and is liable to be dismissed if the
plaintiff on being provided with an opportunity to amend the plaintiff refuses to do so. The
two principals have been incorporated under the Code of Civil Procedure rightly in Order to
provide justice and protect the rights of the individuals.

BIBLIOGRAPHY
BOOKS:

 BARE ACT, The Code of Civil Procedure, 1908

WEBSITES:

 https://indiankanoon.org/doc/
 https://www.aaptaxlaw.com/code-of-civil-procedure/order-I-code-of-civil-
procedure-parties-to-suits-rule-9-10-11-12-13-order-I-of-cpc-1908-code-of-civil-
procedure.html
 https://www.scconline.com/DocumentLink.aspx?q=JTXT-0001523074
 https://www.ncertbooks.guru/llb-books/
 http://www.legalserviceindia.com/article/
 https://www.ilms.academy/joinder-mis-joinder-non-joinder

13