Misjoinder and Non-Joinder of Parties

The civil cases, start with the institution of the case by one party against the another party and the competent court decides the rights and liabilities of the parties. Order 1 of the Code of Civil Procedure, 1908 deals with the the parties to the suit and also contains provisions for addition, deletion and substitution of parties, joinder, non-joinder and misjoinder of parties and objections to misjoinder and non-joinder.

The question of joinder of parties may arise either as regards the plaintiffs or as regards the defendants. An Act may be done by a single individual and may adversely affect another individual. In that case, the question of joinder of parties does not arise at all. The question of joinder of parties arises only when an Act is done by two or more persons or it affects to two or more persons. [1] All persons may be joined in one suit as plaintiffs according the conditions required under rule 1 of order 1. 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. On the other hand, a person can be joined as a defendant according to the provisions of rule 3 of order 1. 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 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.

In Benares Bank Ltd. V. bhagwandas [2] , 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. [3]

Rule 9 of order 1 lays down that no suit shall be defeated by reason of misjoinder or non-joinder of parties. In such cases, the court may deal with the matter in controversy as regards the rights and interests of the parties avtually before it. However, this rule does not apply to cases where there is a non-joinder of necessary party.

If two or more persons are joined as plaintiffs or defendants in one suit in contravention of order 1, Rules 1 and 3 respectively and they are neither necessary nor proper parties, it is a case of misjoinder of parties. On the other hand, where a person, who is necessary or proper party to a suit has not been joined as a party to the suit, it is a case of non-joinder. The general rule is that a suit cannot be dismissed only on the ground of non-joinder or misjoinder of parties.

There would be misjoinder of parties if person having a separate cause of action file a suit jointly. [4] It would not be in a case where a plaintiff files a suit against more than one person and a common question of law or fact would arise if separate suits were filed. [5] 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 of defendants and cause of action, if different cause of action are joined against different defendants separately. Such a misjoinder is technically called multifariousness. [6]

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. The court in various cases held that if the decree cannot be effective without the absent parties, the suit is liable to be dismissed. [7] In a particular case, where one of the mortgagees instituted the suit on the mortgagee, it was held that this rule did not cure the defect, as the matter was not a matter of procedure. Thus, suit was held to be not maintainable on the ground that an effective decree giving discharge to the mortgagors could not be passed by reason of the non-joinder of some of the mortgagees. [8] In cases where the joinder of a person as a party is only a matter of convenience the absent party may be added or the suit may be tried without him. [9] The scope of this rule was elaborately discussed by Allahbad High Court in Maqsood Ali v. Zahid Ali [10] that except where there is a legal bar to the maintainability of a suit by reason, non-joinder of a party, or where in his absence, the decree that may be passed might become infructuous or inexecutable, the court cannot dismiss a suit for non-joinder of a person. When the question is such that it can be decided between the parties to the suit, the court cannot decline to do so because the third parties might be interested thereon. The plea of non-joinder must be raised at the earliest opportunity and if the objection as to non-joinder as is not raised at an early stage, it is deemed to have been waived.

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.

A suit is not to be dismissed only on the ground of non-joinder or misjoinder of parties. The Court may allow the 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. In case of misjoinder or non-joinder of parties, Rule 9 provides against the dismissal of the suit.

CHAPTER 1: MISJOINDER OF PARTIES AND ITS EFFECT

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. [11] 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. [12]

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. [13]

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-

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 objection on the ground of misjoinder of plaintiffs and causes of action should be taken at the earliest opportunity. [14]

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. [15] 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. [16]

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. [17]

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. [18] Where there is a misjoinder of parties, the name 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.

CHAPTER 2: NON-JOINDER OF THE PARTIES AND ITS EFFECT

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. [19]

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. [20]

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. [21]

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, [22] 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 petition and that therefore he could be impleaded as there was nothing in the Act which excluded their application. [23]

CHAPTER 3: 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 has 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. [24]

As per Rule 13 of Order 1 of the Code of Civil Procedure, all objections on the ground of non-joinder or mis-joinder 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.

The Supreme Court in various cases held that an objection to non-joinder and misjoinder of necessary party should be taken at the earliest opportunity before the settlement of issues. An objection as to non-impleadment of a party, in a writ petition has to be taken at the stage of second appeal. The Andhra Pradesh High Court held that an issue of non-joinder of a necessary party can be raised in appelleate court. [25] An objection as to non-impleadment of a party, in a writ petition has to be taken at the stage of counter-affidavit and not at the belated stage of hearing.

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. [26]

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. [27]

The words ‘unless the ground objection has subsequently arisen’ allows to object 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 objections even though it be after the settlement of issues.

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.

BIBILIOGRAPHY

Primary Source

The Code of Civil Procedure, 1908

Secondary Sources

C.K. Takwani, ‘Civil Procedure’, (Eastern Book Company, Lucknow, 2003).

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