PROJECT ON

NON-JOINDER AND MIS JOINDER OF PARTIES

IN A CIVIL SUIT

Project Submitted To

Mr. Vishal Dixit

Faculty- Civil Procedure Code

Submitted By- Hemant Verma

IX Semester

B.A.LL.B. (Hons.)

ROLL NO. 58

Submitted On- 16th August, 2018

__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

HIDAYATULLAH NATIONAL LAW UNIVERSITY,

RAIPUR, CHHATTISGARH.
ACKNOWLEDGEMENT

This is a sincere expression of gratitude to all those who have helped me complete this project and who
offered every possible help to carry forward the intense magnitude of research involved. I am indebted
to my faculty advisor Mr. Vishal Dixit for allowing me to work upon this challenging and extremely
relevant topic.

I am also thankful to all my friends and family members who have given valuable suggestions pertaining
to the topic and have been a constant source of help and support without which completion of this
project to a refined degree would have been an uphill task.

Thank You.

HEMANT VERMA
Roll no 58

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DECLARATION
This is to certify that project report titled “NON-JOINDER AND MIS-JOINDER OF PARTIES IN A CIVIL SUIT”
which is submitted by me comprises only my original work and due acknowledgment has been
made in the text to all other materials used.

Hemant Verma

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METHODOLOGY
The method of research for the project is doctrinal and the author has basically relied on the
secondary sources of research like books, internet and other such resources.

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 TABLE OF CONTENTS

Contents
ACKNOWLEDGEMENT ................................................................................................................................... 2
DECLARATION ............................................................................................................................................... 3
METHODOLOGY ............................................................................................................................................ 4
Introduction .................................................................................................................................................. 6
JOINDER OF PARTIES ..................................................................................................................................... 7
NECESSARY PARTIES...................................................................................................................................... 9
EFFECT OF NON – JOINDER AND MIS-JOINDER OF PARTIES ......................................................................... 9
CONCLUSION............................................................................................................................................... 14
BIBLIOGRAPHY ............................................................................................................................................ 15

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INTRODUCTION

The presence of opposing parties is one of the essential requirements of any civil suit. But all
parties are not necessary for the suit to be adjudicated upon. Therefore, necessary and non-
necessary parties have to be distinguished between. ‘Necessary Parties’ are those parties from
whom relief is claimed. ‘Non-necessary Parties’ are those parties who may be party to the suit,
but from whom no relief has been claimed. The presence of necessary parties is obviously
required for the court to adjudicate and pass an effective and complete decree granting relief to
the plaintiff. However, the same does not hold good for non-necessary parties. In the absence of
necessary parties, the court may dismiss the suit, as it shall not be able to pass an effective
decree. But a suit can never be dismissed due to absence of non-necessary parties. The
underlying logic is that the burden of providing relief should rest upon all the defendants. It
would be unfair if only some of the defendants had to discharge this burden. Therefore, the
plaintiff has to implead all those parties from whom he is claiming relief to the suit.

The Code of Civil Procedure, the procedural law relating to civil suits can be classified into two
parts, "Body of the Code" and "Rules" the latter deals with non-joinder of parties. Order 1, Rule
9 lays down the procedure to be followed in cases of non-joinder of parties. This shall be
discussed in greater detail in the course of this project.

NON-JOINDER DEFINED:

“An omission to join some person as a party to a suit, whether as plaintiff or as

defendant, who ought to have been joined according to the law.”

In other words, non-joinder means an omission to join a party to the suit. The Code does not
define non-joinder, but lays down "No suit shall be defeated by reason of … 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 to this Rule however excludes
its applicability to cases of non-joinder of necessary parties. ‘Necessary Parties’ are those parties
in the absence of whom no effective decree can be passed by the court. For instance, in a suit
filed against a partnership firm, all partners would be necessary parties. As against this, non-

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necessary parties are those parties in the absence of whom the court can still adjudicate in an
effective manner.1

If a suit is dismissed straightaway for a non-joinder of necessary parties, the plaintiff will have to
file the suit again, resulting in multiplicity of litigation. The Code, through various legal
provisions seeks to prevent multiplicity of litigation. For this reason, the court may add the
necessary parties on its own, or may even direct the plaintiff to do so. However, since adding
necessary parties to the suit is procedural in nature, the same has to be done at the time of trial,
but without prejudice to the plea of limitation of the parties involved.

In this project, the researcher shall first begin with the meaning of joinder of parties to a suit.
Thereafter, the question of who the necessary parties to a suit are shall be addressed. Finally, the
legal consequences of non-joinder of necessary parties shall be analyzed with reference to case
laws, so as to appreciate the judicial interpretation of the relevant legal provisions.

JOINDER OF PARTIES

A. MEANING AND ESSENTIAL REQUIREMENTS OF A CIVIL SUIT

Civil Law represents an individual’s private right of action for redress. A civil suit (also referred
to as a ‘civil proceeding’ or simply ‘suit’) is a process for recovery of an individual right or
redress of an individual wrong. The essential requirements of any civil suit, according to the
decision of the Bombay High Court in Krishnappa v. Shivappa2 are the opposing parties, the
subject matter in dispute, the cause of action and the relief claimed by the plaintiff. For the
purposes of the project, we shall be concerned only with the opposing parties.

The opposing parties quite logically would refer to the plaintiff and the defendant. Since civil
law deals with only those rights that are private in nature, legal action for enforcing the same can
be initiated only by the person whose civil rights have been violated. Thus, there has to be a
plaintiff in civil suits. The plaintiff would demand relief from the person who has violated his

1
Jagannath v. Jaswant Singh AIR1954SC210.
2
AIR1997Bom325

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civil rights, the defendant. The parties to a suit shall be either on the side of the plaintiff or the
defendant. What has to be considered is to what extent should parties be joined to a suit. In this
connection, the Code provides for compulsory joinder of all those parties necessary for the court
to decide the suit, and consequently grant relief to the plaintiff.

B. 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 fundamental
consideration appears to be the existence of a right of relief in relation to the party. The opinion
of the court shall also be based upon whether there is a right of relief in relation to the party in
question.

In the Code, Order 1 deals with parties to a suit. Inter alia, it provides for joinder of defendants,
and plaintiffs. The plaintiff can implead defendants to a suit.

The essential requirement is that issues of fact or law have to be similar. Not all the issues need
to be similar, nor do the issues have to be identical. A joinder can take place only when there is a
right of relief out of the same transaction, and issues of fact/law involved are common to all
the plaintiffs. The concerned court may also order separate trials if it is of the opinion that joint
trials will involve delay or prejudice the defendants. The civil court shall apply its discretion in
this respect, and its decision can be reversed on appeal only if it can be proved that there was an
abuse of such discretion. The interests of both sides have to be ensured. On the one hand, the
plaintiff has to be entitled to speedy relief, thus enabling him to file a single suit against several
defendants. At the same time, the defendants should not be prejudiced in their representation in
the suit, or they shall be denied their right to a fair hearing.

As far as joinder of plaintiffs is concerned, the important factor is that there should be a common
act or transaction out of which the relief is claimed, and not common causes of action. So, it is
even possible for several plaintiffs to be joined together in a suit, so long as the aforesaid
requirements are satisfied. However, persons may be jointly interested in a suit, in which case
their interests have to be common, and in no way antagonistic. Moreover, their interest has to lie

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in the subject matter of the suit, not in any other question that may be incidental or secondary to
the main issue in question. Similar to joinder of defendants, there has to be a common (not
identical) issue of fact or law involved.

NECESSARY 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.
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.

EFFECT OF NON – JOINDER AND MIS-JOINDER OF

PARTIES
A. MEANING OF NON - JOINDER AND MIS – JOINDER

‘Non-joinder’ means an omission to join some person as a party to a suit, whether as plaintiff or
as defendant who ought to have been joined according to the law. Non-joinder of parties refers to
a situation in which those parties whose presence is essential and in whose absence no effective
decree can be passed by the court have not been impleaded. They are those parties who should
have been joined under Order 1, Rule 10 (2) of the Code. In contrast, presence of proper parties
is needed only for the court's convenience in deciding the dispute. The court shall in their

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presence only be able to decide the dispute completely and effectively. Mis- joinder means the
joinder of any person as a party to a suit contrary to the provisions of the code is called
misjoinder. Misjoinder may be misjoinder of plaintiffs; misjoinder of defendants and misjoinder
of cause of actions

B. DIFFERENCE BETWEEN NON - JOINDER AND MISJOINDER

‘Misjoinder’ of parties means a joinder of a party who ought not to have been joined either as a
plaintiff or as a defendant. In other words, it refers to impleading an unnecessary party. It may
also refer to a situation in which a plaintiff is impleaded as a defendant and vice-versa (party
wrongfully impleaded). However, ‘Non-joinder’ refers to a situation when a party who ought to
have been impleaded according to the law is not impleaded. As opposed to presence of the
wrong party, it refers to absence of a party. In case of non-joinder of necessary parties, the suit
may be dismissed, but this is not so in case of misjoinder.

C. EFFECT OF NON - JOINDER OF NECESSARY PARTIES

When a person who is a necessary party to a suit has not be joined as a party to the suit, it is a
case of non-joinder. As regards the non-joinder of parties, a distinction has been drawn between
the non-joinder who ought to have been joined as a party and the non-joinder of a person whose
joinder is only a matter of convenience or expediency.

A suit is not to be dismissed only on the ground of non-joinder of parties. The court may allow
necessary parties to be joined, in at a later stage. 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.

According to the proviso of the Rule 9 of Order 1 nothing in the said rule applies to non-joinder
of a necessary party. A necessary party is that in whose absence the court cannot pass an
effective decree. If the decree cannot be effective without the absent party, the suit is liable to be
dismissed. However, where the joinder of a person is only a matter of convenience and he has
not be joined as a party, he may be added at any stage or the suit may be tried without
impleading him. The allowing of the suit depends on whether a party who has not been joined is
a necessary party or merely a proper party. If a necessary party is not joined, then, the suit is
liable to be dismissed.

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Section 99 of the Code of Civil Procedure provides that no decree shall be reversed or
substantially valid, nor shall any case be remanded, in appeal on account of any misjoinder or
non-joinder of parties or causes of action or any error, defect or irregularity in any proceedings in
the suit, not affecting the merits of the case or the jurisdiction of the court and, however, nothing
in this section shall apply to non-joinder of a necessary party. Where a relief is sought against a
party without impleading him as a party, the suit would be liable to be dismissed.

In case of non-joinder of parties, Rule 9 provides against the dismissal of suit. The only course
open to the court under such circumstances is formally to call upon the plaintiff to make his
election and confine the suit to one set of defendants. In case of non-joinder of the necessary
party, an opportunity should be given to the plaintiff to add the necessary party. The Calcutta
High Court in the case of suit for recovery of money against LIC, it held that all the heirs of the
claimant would be necessary parties to the suit and non-joinder of some of them would be bad.

Rule 1 of Order 1 is subject to local, or special law, statutory provisions as also to any special
form of procedure prescribed by any law. Thus, any special law provides that a certain person
must beimpleaded as a defendant although no relief is claimed against him, then failure to
implead him will be fatal to suit notwithstanding the provision of Order 1 rule 9.

Where a suit for possession was filed, and the defendant derived his title from the auction-
purchaser in liquidations proceedings of a company, but the plaintiff sued for declaration that the
auction proceedings and the subsequent conveyance by auction purchaser to defendant were void
in law under a certain Act, it was held by the Supreme Court in Vishnu v. Rajan Textile
Mills, that the liquidator was a necessary party and in his absence the suit for declaration must
fail.

Rule 9 applies to a mortgage suit as well as to other suits. In a suit for redemption of mortgage
property where the daughters of the mortgagee who were necessary parties were not impleaded
and objection as to non-joinder was not raised at earliest opportunity, the suit annot be
maintained on account of non-joinder.

The Supreme Court held that a candidate who had withdrawn before contesting elections was not
a necessary party and so his non-joinder was not fatal to the maintainability of the election

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petition and that therefore he could be impleaded as there was nothing in the Act which excluded
their application.

D. EFFECT OF MIS-JOINDER OF NECESSARY PARTIES

The joinder of any person as a party to a suit contrary to the provisions of the code is called
misjoinder. Misjoinder may be misjoinder of plaintiffs; misjoinder of defendants and misjoinder
of cause of actions.

Misjoinder of Plaintiffs

Where two or more persons may have been joined as plaintiffs in one suit but the right to relief
alleged alleged to exist in each plaintiff does not arise out of the same act or transaction (or series
of acts or transaction) and if separate suits were brought by each plaintiff no common question of
fact or law would have been arisen, there is misjoinder of plaintiffs. The objection on the ground
of misjoinder of the plaintiffs, should be taken at the earliest possible opportunity; if not, it is be
deemed to have been waived.

Misjoinder of defendents

Likewise, where two or more persons have been joined as defendants in one suit but the right to
relief alleged to exist against each defendant does not arise out of the same act or transaction (or
series of acts or transactions) and if separate suits were brought against each defendant, no
common question of fact or law would have arisen, there is misjoinder of defendants.

Misjoinder of cause of action

Misjoinder of causes of action may be coupled with the misjoinder of plaintiffs or misjoinder of
defendants. Thus, the subject may be considered under the following three heads-

(i)Misjoinder of plaintiffs and cause 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 plaintyiffs and cause of action. The

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objection on the ground of misjoinder of plaintiffs and causes of action should be taken at the
earliest opportunity.

(ii)Misjoinder of defendant and causes of action : Multifariousness

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 pesons were residing as
tenants separately and he brought a suit for eviction against both the defendant-tenents claiming
different relief against them. It was held that the suit was bad for multifariousness.

(iii)Misjoinder of claims founded on several causes of actions

Order 2 of the code of Civil Procedure Code 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.

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

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of the plaintiff or the defendant who has been improperly joined may be struc out under r 10 and
the case may be proceed with.

In patasibai V. Ratanlal, 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.

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 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 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

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BIBLIOGRAPHY
Books:
 Takwani, C.K.; Civil Procedure, 5th Edn. Eastern Book Company.
 A.N.Saha, ‘The Code of Civil Procedure’, Vol 2 (Premier Publishing Co., Allahabad,
2004).
 M.P.Tandon, ‘The Code of Civil Procedure’, (Allahabad Law agency, Faridabad, 2002).
 R.C. Khera, ‘The Code of Civil Procedure’, Vol III (N.M. Tripathi Private Limited,
Bombay, 1997).
 Paul, Salil and Srivastava, Anupam, Mulla: The Code of Civil Procedure, 16thEd
(Buttersworths: New Delhi, 2001).
 Myneni, S.R., Code of Civil Procedure & Limitation Act, Asia Law House Hyderabad,
2004, P.48
 Thakkar C.K., Code of Civil Procedure, Eastern Book Company, Lucknow,2004

Statutes:
 Code of Civil Procedure, 1908.

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