“Law Master’s” Publication

‘Parties to suit’

Prof. .S. D. Bhosale

24

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PARTIES TO SUIT

QUESTION BANK

1. Explain the necessary parties to the suit? What is the meaning of joinder, mis-joinder,

and non-joinder of parties?

2. What is meant by mis-joinder and non-joinder of parties? What is the consequence

thereof?

SHORT NOTES

1. Joinder, mis-joinder, and non-joinder of parties.

2. Representative suit.

3. Striking out, adding or substituting parties

SYNOPSIS

Introduction

O. I contains 13 rules which deal with the parties to suits, joinder, non-joinder and

mis-joinder of parties and joinder of causes of action.

Joinder of parties to the suit means either joinder as a plaintiff or as a defendant.

The question of joining plaintiffs or defendants comes only if the act is done by several

persons (defendants) or it is done against several persons (plaintiffs).

I. JOINDER OF PLAINTIFFS (R. 1)-

All persons may be joined in one suit as plaintiffs where-

a) The right to relief alleged to exist in each plaintiff arises out of the same act or

transaction; and

b) If such persons brought separate suits, any common question of law or fact would

arise.

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‘Parties to suit’

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Illustrations

a) X enters into an agreement to sell a plot to Y and Z jointly. If X latter refuses to hand

over possession of plot to Y and Z, both can join as plaintiffs to bring action of specific

performance of contract against X.

b) X publishes a series of books styling them as “Oxford and Cambridge Publications”,

when they are not the publications of the said Universities. Both Oxford and Cambridge

Universities can join as plaintiffs against X in a suit to restrain X from selling the books

as their publications.

II. JOINDER OF DEFENDANTS (R. 3)-

All persons may be joined in one suit as defendants where-

a) The right to relief alleged to exist against them arises out of the same act or

transaction; and

b) If separate suits are brought against such persons, any common question of law or fact

would arise.

Illustration

1. If A is injured in an accident between a bus and a car. He can bring an action for

compensation against owners of both these vehicles.

2. If B and C have defamed A; A can bring suit for defamation against both of them.

The Plaintiff may join in one suit all or any of the persons severally or jointly

liable on any contract (R.6). Similarly, if the plaintiff is in doubt as to the persons from

whom he is entitled to obtain the redress, he may join two or more defendants (R. 7).

Where the Court feels that any joinder of defendants may embarrass or delay the

trial of the suit the Court may order separate trials or may make such other order as may

be expedient (R. 2 and 3A). Similarly, the Court may give judgment for one or more of

the plaintiffs as may be found entitled to relief against one or more of the defendants as

may be found liable (R. 4).

III. NECESSARY AND PROPER PARTIES-

‘A necessary party is one in whose absence no order can be made effectively. ‘A

proper party is one in whose absence an order can be made but whose presence is

necessary for a complete and final decision on the question involved in the proceeding.

In other words, ‘proper parties’ are those persons whose presence before the

Court, though not essential, it may be proper that they also be present before the Court.

Therefore the adjudication on issues and settlement of the dispute is done in their

presence. In the absence of them, the suit is not defective and can’t be thrown out.

Whereas, in the absence of a necessary party, a suit is defective, and if not corrected, the

suit will be thrown out.

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‘Parties to suit’

Prof. .S. D. Bhosale

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Thus, in a suit of partition, all sharers are necessary parties. In a suit for eviction of

tenant, the main tenant is a necessary party. Similarly, in a suit for specific performance

of a sale agreement, the subsequent purchaser of the property is a necessary party. On the

contrary, in a suit for eviction sub-tenant is a proper party. Similarly, in a suit by sons

against father for partition, grandchildren are proper parties.

IV. NON-JOINDER AND MIS-JOINDER OF PARTIES-

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. Whereas, if persons are joined in the suit as plaintiffs

or defendants without following conditions mentioned in R. 1 and 3, it is a case of mis-

joinder of parties. In other words, if joined parties are neither necessary nor proper, they

are mis-joinder.

If a necessary party to the suit is not joined, the suit is liable to be dismissed.

However, a suit cannot be dismissed only on the ground of non-joinder or mis-joinder of

other parties that are not necessary.

Multifariousness-

Mis-joinder of parties and causes of action in a suit is technically known as

‘multifariousness’. Where, in a suit, there are two or more defendants and two or more

causes of action, but there are different causes of action against different defendants

separately, the suit will be bad for mis-joinder of defendants and causes of action on the

ground of multifariousness.

For example, if A agrees to sell certain lands to B, B sues A for specific performance of

the contract but joins C also as the defendant on the allegation that A was willing to carry

out the contract and execute the sale deed, but B is instigating him to break a contract.

V. OBJECTION AS TO MIS-JOINDER AND NON-JOINDER (R. 13)-

All objections on the ground of non-joinder or mis-joinder of the parties shall be

taken at the earliest possible opportunity. Otherwise, they will be deemed to have been

waived.

VI. STRIKING OUT, ADDING OR SUBSTITUTING PARTIES (R. 10)-

R. 10 deals with striking out, adding and substituting plaintiffs and defendants by

the Court after the filing of the suit. It incorporates the principle of natural justice that no

order can be passed without hearing of the parties.

(1) Adding or substituting plaintiffs (R. 10 (1)-

It provides that where a suit has been instituted in the name of the wrong persons as

a 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

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‘Parties to suit’

Prof. .S. D. Bhosale

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in dispute so to do, order any other person to be substituted or added as plaintiff upon such

terms as the Court thinks just.

Thus, the name of the agent as a plaintiff may be substituted with that of his principal

in the suit against a third person because, according to the Partnership Act, a suit is to be

brought in the name of the principal and not on an agent. Similarly, a suit filed in the name

of ‘Hindu Joint Family’ may be substituted with the name of Karta (manager) of the family

because the Hindu Joint family business has no corporate personality distinct from its

members.

(2) Court may strike out or add parities (R. 10 (2)-

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.

Where defendant is added, the plaint shall be amended in such manner as may be

necessary (R. 10 (4).

NOTES-

REPRESENTATIVE SUIT (O. 1 R. 8)-

The general rule is that all persons interested in a suit must be made parties thereto.

However, R. 8 of O. I is an exception to this general rule. It provides that when there are

numerous persons similarly interested in a suit, one or more of them can, with the

permission of the Court or upon direction from the Court, sue or be sued on behalf of

themselves and others.

1) Essentials of representative suit-

The following are the essentials of representative suits-

(1) There must be a number of parties;

(2) All parties must have a common interest in the suit;

(3) The permission must have been granted, or direction must have been given by the

Court; and

(4) Notice must have been given to the parties whom it is proposed to represent in the

suit.

2) Object-

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‘Parties to suit’

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The provision under O. I, R. 8 has been made in order to save time and expenses, to

ensure a single comprehensive trial of questions in which the number of persons are

interested and to avoid harassment to parties by a multiplicity of suits. In other words, the

object of this provision is to facilitate the disposal and decision of issues covering a large

number of persons interested.

In this way, suit under S. 92 is a representative suit. According to the section, the

beneficiaries of the Trust, who may comprise the public at large, may choose one or more

persons amongst themselves for the purpose of filing a suit and the suit title, in that case,

would show only their names as plaintiffs¹. *****

¹Public Charities (S. 92)-

(1) In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable

or religious nature, or where the direction of the court is deemed necessary for the administration of any such trust,

the Advocate-General, or two or more persons having an interest in the trust and having obtained the leave of the

court, may institute a suit, whether contentious or not, in the principal Civil Court of original jurisdiction or in any

other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole

or any part of the subject-matter of the trust is situate to obtain a decree-

(a) removing any trustee;

(b) appointing a new trustee;

(c) vesting any property in a trustee;

(cc) directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession

of any trust property in his possession to the person entitled to the possession of such property.

(d) directing accounts and inquiries;

(e) declaring what proportion of the trust property or of the interest therein shall be allocated to any particular

object of the trust;

(f) authorizing the whole or any part of the trust property to be let, sold, mortgaged or exchanged;

(g) setting a scheme; or

(h) granting such further or other relief as the nature of the case may require.

(2) Save as provided by the Religious Endowments Act, 1863 (or by any corresponding law in force in the territories

which, immediately before the 1^stNovember, 1956, were comprised in Part B States), no suit claiming any of the

reliefs specified in sub-section (1) shall be instituted in respect of any such trust as is therein referred to except in

conformity with the provisions of that sub-section.

(3) The Court may later the original purposes of an express or constructive e trust created for public purposes of a

charitable or religious nature and allow the property or income of such trust or any portion thereof to be applied cy

pres in one or more of the following circumstances, namely-

(a) where the original purposes of the trust, in whole or in part-

(i) have been, as far as may be, fulfilled; or

(ii) cannot be carried out at all, or cannot be carried out according to the directions given in the

instrument creating the trust or, where there is no such instrument, according to the spirit of the

trust; or

(b) where the original purposes of the trust provide a use for a part only of property available by virtue of the

trust; or

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‘Parties to suit’

Prof. .S. D. Bhosale

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(c) where the property available by virtue of the trust and other property applicable for similar purposes can

be more effectively used in conjunction with, and to that end can suitably be made applicable to any other

purpose, regard being had to the spirit of the trust and its applicability to common purposes, or

(d) where the original purposes, in whole or in part, have, since they were laid down,-

(i) been adequately provided for by other means, or

(ii) ceased, as being useless or harmful to the community, or

(iii) ceased to be, in law, charitable, or

(iv) ceased in any other way to provide a suitable and effective method of using the property

available by virtue of the trust, regard being had to the spirit of the trust.