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ORDER 1 CPC

There is always a concern while filing a suit as to whether all the parties concerned have been taken into
account or not. Further, if any party is missed, can that party be joined in a suit at a later point of time is
another issue to be pondered upon. Fortunately, Code of Civil Procedure, 1908 comes to our rescue in
order to provide a remedy for the same. Though the joinder of parties rests upon the discretion of court,
Order 1 Rule 1 or Order 1 Rule 3, as the case may be, of Code of Civil Procedure, 1908[1] is to be read
together with Order 2 Rule 3 and Order 2 Rule 6.

Order I Rule 1 of Code of Civil Procedure, 1908 states that:

“1. Who may be joined as plaintiffs

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 such persons, whether jointly, severally or in the alternative; and

(b) if such persons brought separate suits, any common question of law or fact would arise.”[2]

The provision clearly mentions two grounds upon which a party may be joined in a suit at a later point of
time as well. First, the party must have a right to claim a relief, either arising out of the same act or same
transaction or arising out of a series of acts or transactions upon which the suit rests. Second, if a separate
suit is filed, there would exist a common question of law or fact. It should also be read that the two
conditions must be read together and not in priority of the first over the second.

This provision of the Code has been elaborately explained by the Indian Courts in various landmark
judgments. One of the earlier judgments in this regard came even before independence in the year 1935
from Calcutta High Court in the seminal case of Haru Bepari and Ors. vs. Roy Kshitish Bhusan Roy
Bahadur and Ors. (21.05.1935)[3], where under Justice Khundkar and Chief Justice Henderson, it was
held that, ““The conditions which rendered the joinder of several plaintiffs permissible under Order I,
Rule 1. C. P. C. do not necessarily imply that there can be only one cause of action in the suit in which
the several plaintiffs join”[4]

This was followed by Guwahati High Court judgment delivered in the year 1956 in the remarkable case
of of Sitaram Agarwallavs. Rajendra Chandra Pal where the Court made an observation that, “It is not
necessary that all questions arising in the case should be common to two suits if plaintiffs co – sharers
had instituted separate suits. If even one question of law or fact common to both the suits could arise,
there would be justification for joinder and the requirement of Rule 1 of Order 1 would be satisfied. The
defence actually set up would have been raised in both the suits.”[5] and that “The joinder has caused no
difficulty in the consideration of this plea and has not adversely affected the case of the defendant on the
merits.”[6]

In the year 1964, another matter in Allahabad High Court came forward in this regard in the celebrated
case of of Shambhoo Dayalvs. Chandra Kali Devi, where the Court made an observation that, “The law
was changed after the decision in Salima Bibi v. Sheikh Muhammad (ILR 18 All 131)[7] and now it is
possible for three plaintiffs to be joined in one suit even on the basis of different causes of action,
provided any common question of law or fact would arise if the suit had been filed separately. The change
in India was parallel to corresponding changes in English procedure and a joinder of plaintiffs on the
same principle is permitted by the English and Indian Courts today.”[8]
Further, in a subsequent Bombay High Court judgement delivered in the year 1972, in the landmark case
of Krishna Laxman Yadav and Ors. vs. Narsinghrao Vithalrao Sonawane and Anr., in the Courtroom of
JK.K. Desai and Chief Justice M.S. Vaidya, it was observed that, “The result of the provisions of Order 1,
Rule 1 of the Civil Procedure Code is that where right to relief exists in favour of several plaintiffs as a
result of the same transaction even if the right is several the plaintiffs would be entitled to join in the
same suit for the several reliefs the only precondition being that common question of law or fact arose
between the plaintiffs.”[9]

It was followed by the verdict delivered by Rajasthan High Court in the case of Hari Ram Fatan Das and
Ors. vs. Kanhaiya Lal and Ors., where in the Court of Justice P.N. Singhal, it was observed that, “The
relief which the -plaintiffs have claimed, jointly, against the defendants thus arises out of that basic fact,
not only in regard to that part of the suit which relates to the recovery of the arrears of rent and damages,
but also the other part relating to eviction from the suit premises. One essential requirement of Order 1.
Rule 1. C. P. C. has therefore been fulfilled in this case. According to the other requirement of the rule
joinder of plaintiffs would be permissible if it could be shown that “any common question of law or fact”
would arise if they brought their suits separately. It is quite obvious in this case that the common
questions of fact which would arise on the filing of separate suits would be those relating to the existence
of the tenancy granted by Lal Mohammad and the non-payment of rent by the defendants at the rate of Rs.
50/- per mensem. It is therefore clear that both the essential requirements of Order I. Rule 1, C. P. C.
have been fulfilled and there is no reason why the four plaintiffs should not have join-ed in their suit
against the defendants.”[10]

Later, another Bombay High Court judgment delivered in 1978 in the case of Paikanna Vithoba
Mamidwar and Anr. vs. Laxminarayan Sukhdeo Dalya and Anr., where the Court opined that, “It is not,
therefore, necessary any more that there must be identity of interest or identity of causes of action. What
is necessary is the involvement of common question of law or fact.”[11]

An attempt has been made by the legislators, and in order to provide the defendants with equal footing, a
similar provision has been provided for in Order 1, Rule 3 of Code of Civil Procedure, 1908 which reads
as:

“3. Who may be joined as defendants

All persons may be joined in one suit as defendants 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 against such persons, whether jointly, severally or in the alternative; and

(b) if separate suits were brought against such persons, any common question of law or fact would arise.”

It can be observed that the provision provided is more or less the same for both plaintiffs as well as
defendants.

This was further clarified and explained by the Honourable Supreme Court in 1999 in the seminal case
of Iswar Bhai C. Patel @ Bachu Bhai Patel vs. Harihar Behera&Anr.(16.03.1999 – SC),where the
Supreme Court observed that:“This Rule requires all persons to be joined as defendants in a suit against
whom any right to relief exists provided that such right is based on the same act or transaction or series
of acts or transactions against those persons whether jointly, severally or in the alternative. The
additional factor is that if separate suits were brought against such persons, common questions of law or
fact would arise. The purpose of the Rule is to avoid multiplicity of suits”[12] Further the Court observed
that the two provisions, namely, Order 1 Rule 3 and Order 2 Rule 3 if read together indicate that the
question of joinder of parties also involves the joinder of causes of action. The simple principle is that a
person is made a party in a suit because there is a cause of action against him and when causes of action
are joined, the parties are also joined.

On providing a harmonious construction to Order 1 Rule 1 or Order 1 Rule 3 separately with Order 2
Rule 3 the issue seems to be resolved. Order 2 Rule 3 of Code of Civil Procedure, 1908 which can be read
as:

“3. Joinder of causes of action.

(1) Save as otherwise provided, a plaintiff may unite in the same suit several causes of action against
the same defendant, or the same defendants jointly; and any plaintiff’s having causes of action in which
they are jointly interested against the same defendant or the same defendants jointly may unite such
causes of action in the same suit.

(2) Where causes of action are united, the jurisdiction of the Court as regards the suit shall depend
on the amount or value of the aggregate subject-matters at the date of instituting the suit.”

This clarifies that any party subject to the conditions provided can be joined in the suit if the Court deems
fit. Order 2 Rule 3 was further explained by the Honourable Supreme Court in 2017 in the seminal case
of Kazimunnisa (dead) by L.R. vs. Zakia Sultana (dead) by L.R. and Ors.), where it was held by the
Supreme Court that, “This was an appropriate case where the provisions of Order II Rule 3 of the Code,
which deals with joinder of causes of action, could have been resorted to by the Court suo – moto for
clubbing the two cases as the facts involved in both the cases satisfied the attributes of Order II Rule 3 of
the Code”[13]

This view was supported by numerous High Courts even before this landmark judgement. In Allahabad
High Court in the year 1942 in the case of Karan Sinqh and others vs. Lala Kunwar Sen and others, being
one of the earlier verdicts delivered in this regard, Justice James Joseph Whittle sea Allsop observed that,
“It is necessary that the right to relief should arise out of the same act or transaction or series of acts or
transactions and this implies, in my judgment that the acts or transactions, where they are different,
should be so connected as to constitute a single series which could fairly be described as one entity or
fact which would constitute a cause of action against all the Defendants jointly. Whether this necessary
condition exists in any particular case would, of course, depend upon the nature of the case but I am
satisfied that this at least is necessary that the case should be such that it could be said that the Court in
which the suit was instituted had local jurisdiction in the first instance to deal with the controversies
arising between the Plaintiffs and each of the Defendants.”[14]

Further, Justice Sen of Calcutta High Court in the year 1950 in the seminal case of Shew Narayan
Singh vs. Brahmanand Singh and Ors.observed that:

“Read in isolation Order 2, Rule 3 does not permit a suit of this description. The rule permits the joining
of several causes of action in one suit against one defendant or one group of defendants jointly. It does
not sanction a single suit when the cause of action against one defendant is different from the cause of
action against another. But it has been held in numerous cases that Order 1, RULE 3 is not confined to
joinder of parties only but that it also embraces joinder of causes of action against different parties. It has
been further held that Order 2, Rule 3 must not be interpreted so as to override or render nugatory the
provisions of Order 1, Rule 3.”[15]

And it was also observed:

“That although a suit as framed may not be in accordance with the provisions of Order 2, Rule 3,
nevertheless, it would be maintainable if it complied with the provisions of Order 1, Rule 3 and for the
purpose of showing that Order 1, Rule 3 deals not only with joinder of parties but also with joinder of
causes of action. It is permissible to join different causes of action against different defendants in one suit
so long as the stipulations set out in Order 1, Rule 3 are complied with.”[16]

Further the Court observed the intention behind consolidating various cases in Chitivalasa Jute Mills Vs.
Jaypee Rewa Cement[17] and was of the opinion that The Code of Civil Procedure does not specifically
speak of consolidation of suits but the same can be done under the inherent powers of the Court flowing
from Section 151 of the CPC. Unless specifically prohibited, the Civil Court has inherent power to make
such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.
Consolidation of suits is ordered for meeting the ends of justice as it saves the parties from multiplicity of
proceedings, delay and expenses. The parties are relieved of the need of adducing the same or similar
documentary and oral evidence twice over in the two suits at two different trials.

Thus, it can be observed that where the same cause of action arises from the acts of various Defendants,
the Plaintiff can file a single suit against all the defendants. And the defendants may ask to be added as a
party in a suit. In every case, the joinder of a party depends upon the satisfaction of the Court.

Author: Madhur Tulsiani, Intern at Khurana & Khurana, Advocates and IP Attorneys. In case of any
queries please contact/write back to us at swapnils@khuranaandkhurana.com.

References:

[1]https://indiacode.nic.in/bitstream/123456789/2191/1/190805.pdf#search=Code

%20of%20Civil%20Procedure

[2] (ibid).

[3]HaruBepari and Ors. vs. Roy KshitishBhusan Roy Bahadur and Ors, (MANU / WB / 0046 / 1935).

[4](ibid).

[5]Sitaram Agarwalla v. Rajendra Chandra Pal AIR 1956 Gau 7

[6](supra).

[7]Sheikh Muhammad and Ors. vs. Salima Bibi and Ors. MANU/UP/0107/1895

[8]ShambhooDayal vs. Chandra Kali Devi, AIR 1964 All 350,( MANU/UP/0107/1964)

[9]Krishna Laxman Yadav and Ors. vs.NarsinghraoVithalraoSonawane and


Anr., (MANU/MH/0123/1973)

[10] Hari Ram Fatan Das and Ors. vs. Kanhaiya Lal and Ors.,1974, (MANU/RH/0007/1975).

[11]PaikannaVithobaMamidwar and Anr. vs.LaxminarayanSukhdeoDalya and


Anr.(MANU/MH/0061/1979)

[12]Iswar Bhai C. Patel @ Bachu Bhai Patel vs. HariharBehera&Anr. (MANU/SC/0173/1999)

[13]Kazimunnisa (dead) by L.R. vs. Zakia Sultana (dead) by L.R. and Ors., (MANU/SC/1426/2017)

[14] Karan Sinqh and others vs. LalaKunwar Sen and others, (MANU/UP/0176/1942)

[15]Shew Narayan Singh vs. Brahmanand Singh and Ors., (MANU/WB/0181/1950)


[16](supra).

[17]Chitivalasa Jute Mills vs. Jaypee Rewa Cement,(MANU/SC/0092/2004

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:

There must be right to some relief against such party in respect of the matter involved in the
proceedings in question; and

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