Parties to a Suit
Chapter Twelve
Syllabus topic 2.1, "Parties to a suit (Order I to Order III)"
Pages 66 to 71 of 365
In one line
Order I decides who may be in a suit, and its most important rule is that leaving out a necessary party is fatal while leaving out anyone else is not.
Why the Code regulates this
Two opposite dangers. If a court decides a dispute without someone whose rights it settles, that person is bound by nothing and can start again, so the judgment solves nothing. If the court lets every remotely interested person in, the trial becomes unmanageable and the real dispute is lost.
So Order I is a filter with a floor. The floor is the necessary party, who must be there. Above the floor the Code is permissive: people may be joined where their claims share a transaction and a common question, and the court has wide power to add and strike out as the case develops.
Joinder of plaintiffs and defendants
Rule 1 provides that 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 them, whether jointly, severally or in the alternative, and (b) if they brought separate suits, any common question of law or fact would arise.
Rule 3 provides exactly the same two conditions for joining persons as defendants.
Both conditions must be satisfied, and they are cumulative. A shared transaction without a common question is not enough, and a common question without a shared transaction is not enough. Two passengers injured in the same bus crash satisfy both; two people who separately bought defective goods from the same shop on different days satisfy the second but not the first.
Rule 2 lets the Court, where a joinder of plaintiffs may embarrass or delay the trial, put the plaintiffs to their election, or order separate trials, or make such other order as is expedient. Rule 3A gives the same power where the joinder of defendants may embarrass or delay the trial.
Read those alongside Order II Rule 1, which requires every suit to be framed, so far as practicable, so as to afford ground for a final decision on the subjects in dispute and to prevent further litigation concerning them. That is the policy the whole of Order I serves.
Necessary and proper parties
The Code does not define either term in Order I, but the distinction is built into Rules 9 and 10 and it is the highest-yield point in this chapter.
A necessary party is one in whose absence no effective decree can be passed at all: the person whose rights the decree would determine, and against whom the relief is claimed.
Parties to a Suit
A proper party is one whose presence helps the court to decide the whole matter completely, but in whose absence a decree can still be made.
Rule 9 provides that no suit shall be defeated by reason of the misjoinder or non-joinder 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. The proviso, added in 1976, is the whole point: nothing in this rule shall apply to non-joinder of a NECESSARY party.
So the rule and its proviso divide the world in two. Misjoinder never defeats a suit. Non-joinder of a proper party never defeats a suit. Non-joinder of a necessary party does.
The court's power to add and strike out: Rule 10
Rule 10(1) deals with a suit brought in the name of the wrong plaintiff. Where a suit is instituted in the name of the wrong person as plaintiff, or it is doubtful whether it is in the name of the right plaintiff, the Court may at any stage, if satisfied that it was instituted through a bona fide mistake and that substitution is necessary for determining the real matter in dispute, order another person to be substituted or added as plaintiff on such terms as it thinks just.
Note the two conditions: bona fide mistake, and necessity for determining the real dispute. A deliberate choice of the wrong plaintiff is not covered.
Rule 10(2) is the general power. The Court may at any stage, on the application of either party or without any application, order that the name of any party improperly joined be struck out, and that the name of any person who ought to have been joined, or whose presence may be necessary to enable the Court effectually and completely to adjudicate upon and settle all the questions involved, be added.
Those last words define the proper party in the Code's own language, and they are worth quoting in an answer.
Rule 10(3): nobody may be added as a plaintiff suing without a next friend, or as the next friend of a plaintiff under disability, without his consent.
Rule 10(4): where a defendant is added, the plaint shall be amended and amended copies of the summons and plaint served on the new defendant.
Rule 10(5) matters for limitation: subject to the Limitation Act, proceedings as against a person added as defendant are deemed to have begun only on the service of the summons on him. So adding a defendant late can expose the claim against him to a limitation objection, because time is not measured from the original filing.
Parties to a Suit
Rule 10A allows the Court, in its discretion, to request a pleader to address it on any interest likely to be affected by its decision where the party holding that interest is not represented.
Representative suits: Rule 8
Rule 8(1) provides that where there are numerous persons having the same interest in one suit, one or more of them may, with the permission of the Court, sue or be sued or defend on behalf of or for the benefit of all so interested; and the Court may itself direct that one or more of them do so.
Rule 8(2): in every such case the Court shall, at the plaintiff's expense, give notice of the institution of the suit to all persons so interested, either by personal service or, where that is not reasonably practicable because of the number of persons or any other cause, by public advertisement.
Rule 8(3): any person on whose behalf the suit is instituted or defended may apply to be made a party.
Rule 8(4) protects the class from being sold out: no part of the claim may be abandoned, no such suit withdrawn, and no agreement, compromise or satisfaction recorded, unless the Court has given notice to all persons interested in the manner of sub-rule (2).
The reason all of this matters beyond Order I is that a decision in a properly constituted representative suit binds the whole class, by Explanation VI to section 11. The safeguards in Rule 8, permission, notice and the bar on quiet compromise, are the price of that binding effect. See [Res Judicata].
Order III: who may appear
Order III deals with recognised agents and pleaders. Any appearance, application or act in a court, unless otherwise expressly provided, may be made or done by the party in person, or by his recognised agent, or by a pleader appearing, applying or acting on his behalf. Recognised agents include persons holding powers of attorney to act on behalf of parties, and where a party is not resident within the jurisdiction, persons carrying on trade or business for him within the local limits.
The practical point is that appearing "by pleader" is appearing by a person authorised to act, and the acts of a duly appointed pleader bind the party.
A worked example
A landlord, Praveen, wants possession of a flat. The flat was let to Qadir, who has since sublet part of it to Rina. Praveen sues only Qadir.
Is Rina a necessary party? If Praveen wants a decree for possession that will actually put him back in the flat, then yes: Rina is in possession of part, and no effective decree for possession of that part can be made without her. Her absence is a non-joinder of a necessary party, and by the proviso to Rule 9 the suit can fail for it.
Parties to a Suit
Suppose instead Rina merely visits the flat and claims nothing. She is at best a proper party. Rule 9's main part applies and the suit is not defeated; the court decides as between Praveen and Qadir.
The court notices Rina's absence at the framing of issues. Rule 10(2) lets it add her of its own motion, without any application. The plaint is then amended under Rule 10(4) and amended copies served on her.
Rina is added two years after the suit was filed and pleads limitation. Rule 10(5): as against a person added as defendant, the proceedings are deemed to have begun only on the service of the summons on her. Praveen cannot rely on the original filing date against Rina.
Change the facts entirely. Suppose two hundred flat purchasers in one building have the same complaint against one builder. Rule 8 lets one or a few sue on behalf of all, with the Court's permission and after notice to all of them, personally or by public advertisement. If the representatives later want to settle, Rule 8(4) stops them doing so without fresh notice to the class, and the eventual decision binds every purchaser by Explanation VI to section 11.
What it does not mean
Misjoinder does not defeat a suit. Rule 9 says so expressly, and the answer to a misjoined party is to strike the name out under Rule 10(2).
Non-joinder of a proper party does not defeat a suit either. Only a necessary party, by the proviso to Rule 9.
Rule 10(2) is not confined to applications. The court may act on its own.
Adding a defendant does not backdate the claim against him. Rule 10(5) fixes the start at service of the summons on him.
A representative suit is not a shortcut. Permission, notice and the Rule 8(4) restrictions are conditions, and it is those conditions that justify binding people who never appeared.
Quick revision
Order I Rules 1 and 3: plaintiffs, and defendants, may be joined where the right to relief arises out of the same act or transaction or series of transactions and a common question of law or fact would arise. Both conditions, cumulative.
Rules 2 and 3A: the Court may order separate trials, or put plaintiffs to their election, where joinder would embarrass or delay the trial.
Rule 9: no suit shall be defeated by misjoinder or non-joinder, and the court decides between the parties before it. Proviso: this does not apply to non-joinder of a NECESSARY party.
Parties to a Suit
Rule 10(1): wrong plaintiff may be substituted where the suit was brought by bona fide mistake and substitution is necessary to determine the real dispute. Rule 10(2): the Court may at any stage, with or without an application, strike out a party improperly joined and add anyone who ought to have been joined or whose presence is necessary to enable it effectually and completely to adjudicate on all the questions involved. Rule 10(5): as against an added defendant, proceedings begin only on service of the summons.
Rule 8: representative suits, on the Court's permission or direction, where numerous persons have the same interest; notice to all, personally or by public advertisement; no abandonment, withdrawal or compromise without such notice. The decision binds the class by Explanation VI to section 11.
Order III: a party may act in person, by a recognised agent, or by a pleader.
Test yourself
1. When may several persons be joined as defendants? Under Order I Rule 3, where 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 them, whether jointly, severally or in the alternative, and where, if separate suits were brought against them, a common question of law or fact would arise. Both conditions must be satisfied.
2. What is the difference between a necessary and a proper party? A necessary party is one in whose absence no effective decree can be passed, so the suit cannot proceed without him. A proper party is one whose presence enables the court to adjudicate completely on all the questions involved, but in whose absence a decree can still be made.
3. Does the omission of a party defeat the suit? Order I Rule 9 provides that no suit shall be defeated by misjoinder or non-joinder of parties, and the court may deal with the matter as regards the parties before it. But the proviso, added in 1976, excepts non-joinder of a necessary party, and such an omission can defeat the suit.
4. Can the court add a party without an application? Yes. Order I Rule 10(2) allows the court, at any stage of the proceedings and either upon or without the application of either party, to strike out a party improperly joined and to add any person who ought to have been joined or whose presence is necessary to enable the court effectually and completely to adjudicate upon all the questions involved.
5. A defendant is added three years into the suit. From when do proceedings against him run? From the service of the summons on him. Order I Rule 10(5) provides that, subject to the Limitation Act, proceedings as against a person added as defendant are deemed to have begun only on service of the summons.
Parties to a Suit
6. What safeguards apply to a representative suit? The court's permission or direction is required under Rule 8(1); notice of the institution of the suit must be given at the plaintiff's expense to all persons interested, personally or by public advertisement, under Rule 8(2); any of them may apply to be made a party under Rule 8(3); and no part of the claim may be abandoned, no such suit withdrawn, and no compromise recorded without notice to all interested persons under Rule 8(4).
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.