Whether writ petition is maintainable for challenging order of rejection of

addition of party in a suit

The origin of writs can be traced back to the judicial system of medieval England. For a case to
be tried in the King's court, one needed to have a 'writ' or a written formal royal order
commanding him to be present at a particular date before the court to get justice. Fundamentally,
a writ is a formal written order issued by anybody, executive or judicial, authorized to do so. In
modern times, this body is generally judicial. Therefore, a writ can be understood as a formal
written order issued by a Court having authority to issue such an order. Articles 32 and 226 of
Indian Constitution specifically provide for five kinds of writs. These writs are issued in different
circumstances and have different implications.

Habeas Corpus

‘Habeas Corpus’ literally means “to have a body of”. This writ is used to release a person who
has been unlawfully detained or imprisoned.

Mandamus

‘Mandamus’ means ‘we command’. It is issued by the Court to direct a public authority to
perform the legal duties which it has not or refused to perform.

Quo Warranto

‘Quo Warranto’ means ‘by what warrant’. Through this writ, the Court calls upon a person
holding a public office to show under what authority he holds that office.

Certiorari

‘Certiorari’ means to ‘certify’. When the Court is of the opinion that a lower court or a tribunal
has passed an order which is beyond its powers or committed an error of law then, through the
writ of certiorari, it may transfer the case to itself or quash the order passed by the lower court or
tribunal.

Prohibition
A writ of prohibition is issued by a Court to prohibit the lower courts, tribunals and other quasi-
judicial authorities from doing something beyond their authority.

Joinder of parties

Order 1 of the Code of Civil Procedure deals with parties to the suit. Order 1 Rule 10 of the Code
of Civil Procedure enables the court to add or substitute any person as a party at any stage of the
proceedings.

Writ under Article 226 ought not to be heard by the High Court if the person getting affected by
the decision of the High Court is not made a party to the case. It was stated by the Supreme
Court in case of Prabodh Verma v State of U.P1 that in cases where the number of people
affected by the decision is too big then those should be represented by any such person who has
the capacity to represent them all.

Meaning of Non - 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
presence only be able to decide the dispute completely and effectively.

Compulsory Joinder and Addition of Parties

Compulsory joinder of parties obviously brings one to the question of whether certain persons
not joined as parties actually have sufficient interests in the suit, to the extent that they must be
joined. Also, if they cannot be joined, will the suit be allowed to proceed, or will it have to be
dismissed. The history of the law governing compulsory joinder of parties is rather complicated.

Addition of necessary parties may be ordered by the court. Though a necessary party has a right
to be included to the suit, that is not so in case of a proper party. However, even a proper party

1
1985 AIR 167, 1985 SCR (1) 216
may apply to the court to be joined. The court must primarily consider whether the presence of
that party would enable the total adjudication of the suit or not. The discretion of the court is
wide in this respect. If the presence of such a party is essential or highly desirable, in the interests
of justice, the court can order the same. In Raja Ram v. Anant Ram 2, a suit had been filed for the
dissolution of partnership and accounts in which one partner was the head of a joint Hindu
family business. The son of such a partner was held to be a necessary party who could be
impleaded to the suit. However, the court would not be adjudicating upon his rights so as to grant
relief to the plaintiff.

The question of addition of parties is essentially a judicial discretion that shall have to be
exercised in the light of the facts and circumstances of each case. The court may be of the
opinion that adding a party would be better so as to enable it to effectually and completely
adjudicate upon the controversy. The principle of direct interest shall be suitably liberalized in
such a case. The addition of parties may be justified if at the time of instituting the suit, he was
not impleaded for some reasons. Also, it may be likely that the party may not have been a
necessary or proper party at that point of time, but subsequently the position has changed. The
underlying characteristic shall still be that his presence shall be helpful in enabling the court to
decide the dispute. This was held in Setabi Devi v. Ramadhani Shaw3. The purpose of this
provision is to give an opportunity to all parties to be heard. Thus, those parties from whom no
relief has been claimed may also be added, since they may be affected as a consequence of the
decree.

Non-joinder is not sufficient reason to dismiss the suit if the parties not impleaded are not
necessary parties. The court shall in such a situation first call upon the plaintiff to choose that he
wants to proceed against with the suit. The plaintiff has to decide who he would like to claim
relief from. If he does not implead a particular party, the party shall not be a bound by the decree
passed. The matter of maintainability of a writ for challenging order of rejection of addition of
party in a suit can be different in situations due to facts and circumstances of case relating to
whether it is a necessary party or not.

2
18 Ind Cas 305
3
AIR 1966 Cal 60