Joinder /Mis-Joinder /Non-joinder of Parties in CPC

| Parties to Suit CPC

Joinder /Mis-Joinder /Non-joinder of Parties in CPC | Parties to Suit CPC

Joinder /Non-Joinder /Mis-Joinder of Parties in CPC

A civil suit is a process for the recovery of an individual right or redress of an

individual wrong. Case law: Krishnappa v. Shivappa

In this case Bombay high court addressed the essential requirements of any civil
suit in its decision which says that essential requirements of the civil suit are
opposing parties (plaintiff and defendant), the subject matter in dispute, the cause
of action and the relief claimed by the plaintiff.

Parties to Suit CPC

Institution of civil cases starts when the case is filed by one party against the other
party, where the party who files suit seeks for the relief from another party. The
party who files the case and claims relief from the other party is known as plaintiff
and party from whom relief is claimed is known as the defendant, Both the parties
are essential for the civil suit. According to the nature of the suit, jurisdiction of the
court will be decided and the competent court will decide the rights and liabilities
of the parties.

There are more parties other than plaintiff and defendant, such as necessary party,
proper party i.e. joinder, misjoinder, nonjoinder, but all the parties are not
necessary for the adjudication of the suit. Therefore, it is necessary to determine
between the necessary party and proper party for the proper adjudication of the
suit. Order 1 of CPC,1908 describes who can be parties to the suit, also talks about
the joinder, non-joinder, misjoinder, necessary party and proper party.

Joinder, Mis joinder and Non joinder of parties in CPC : -

JOINDER of Parties in CPC:

There is constantly an apprehension while filing a civil suit as if all the parties of
the suit have been taken into consideration for an account or not. In addition, if any
party or parties are missing, can be taken into consideration and can be added or
joined later in a suit as another issue. provided, Code of Civil Procedure, 1908
have a remedy to add party or parties to the suit (missing) by the process of the
“JOINDER” of parties cpc and the rest depends upon the discretion of the court
under Order 1 rule 2 and order 1 rule 3 and this has to be read with the other
provisions of the act that orders 2 rule 3 and rule 4 of the civil procedure code,
1908.

The 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.”

These above-mentioned provisions of the code of civil procedure, 1908 have been
explained by the range of landmark judgment. One of the famous judgments given
by the Indian court before the independence of India in this regard in the year 1935
from Calcutta High Court in the case of Haru Bepari and Ors. vs. Roy Kshitish
Bhusan Roy Bahadur and Ors. By J. Khundkar, in the case, the court held that the
situation in the present case which makes the joinder of more parties or plaintiff
which are permissible within the ambit of rule 1 of order 1 of code of civil
procedure 1908, this does not make necessary to imply or render that there
shouldn't be only one cause of action present in the suit filed, and further in the suit
there can be many parties as a plaintiff to join as a joinder(or joinder of parties
cpc).

The joinder of party or parties has neither affected the opposite party in any
manner nor caused any difficulties or hindrances contemplation of the pleadings.

The harmonious construction of Joinder between Order 1 rule 1 with rule 3 of

order 2 of CPC, 1908, the problems between these two has been resolved as the
rule 3 of order 2 reads as follows: causes of action of Joinder of parties cpc-

▪ 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.
 ▪ 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.”

As mentioned above it clarifies that any party or parties which are not joined in the
suit can be joined as joinder of the suit if the court deems fit subject to the
discretion. As rule 3 of order 2 of code of civil procedure was further explained by
the Hon'ble SC in the year 2017 in the landmark judgement of Kazimunnisa vs.
Zakia Sultana Case, the Supreme Court held that this case was the most
appropriate case where the provisions of the code of civil procedure, 1908 under
rule 3 of order 2 which revolves around the joinder’s cause of action.

As the court has merged the two cases having the same facts and issues by taking
the suo-moto action as both the cases fully attributes and satisfy the rule 3 of order
2 of the code of civil procedure,1908. The view of the Supreme Court has been
recognized by the various High Courts all over the country.

In Addition to the above, it can also be accorded that whenever the same cause of
action arises from the act of the defendant or opposite party/parties, the
complainant or the plaintiff can come together and can become the joinder of the
suit and file a single suit against the respondent or defendant. As in every case the
plaintiff and the joinder of the party/parties have to be dependent on the discretion
or satisfaction of the court.

What are Mis joinder and non joinderof parties in cpc :

NON JOINDER of Parties under CPC:

Non-Joinder is an error or omission to join of some person or party or parties
which is an essential party/parries as party/parties to a suit, he may be plaintiff or
defendant who ought to need to be joined in the eyes of law as a necessary party as
the final verdict or order cannot be possible by the hon’ble court to give any
effective decree which has been not implemented. And in case of non joinder of
Necessary parties the court cannot pass an effective decree.

Non-Joinder of parties basically refers to a situation where the necessary parties

are missing which are an essential party without whom the decree would be
difficult to pronounce. As mentioned under the code of civil procedure under
provision rule 10 (2) of order 2.

In contrast, the necessary parties are much needed not only for Court’s
convenience in deciding the case properly but for the plaintiff or defendant as in
addition the court shall only in the presence of these parties/party only be able to
decide or pass any decree effortlessly and effectively.

Consequences of Non Joinder of Necessary Parties

The absence of non joinder of necessary parties means that those parties which are
not present in the present suit and from which the relief is claimed are not present
in the suit, because of which the court is not able to pass any appropriate of the
effective judgment of decree. In these circumstances, the suit can be dismissed but
does not have to be dismissed. If the court found it legally viable and just, the court
may grant relief in favour of the plaintiff by passing a decree regarding the suit
between the parties.
The defendant has to claim a non joinder of necessary parties at the earliest, in the
written statement. In the case of Laxmishankar Harishankar Bhatt vs. Yashram
Vasta, the Supreme Court was of opinion that “the Court has the authority to refuse
the dismissal of the suit on the mere grounds of non-joinder of party/parties as to
the nonjoinder are the important party to the suit instituted as the plea of non-
joinder found to be in huge indistinguishable. The Hon'ble court also upheld a
significant principle that is that in any suit claiming property, until all the claiming
parties or co-owner are party/parties to the suit are present or are parties to the suit,
the suit shall stand unmaintainable.

MIS JOINDER OF PARTIES UNDER CPC:

The non-necessary parties or the misjoinder of parties cpc are the parties of the
party which are added mistakenly or irrelevantly for irrelevant purposes and
therefore there is no relief can be made. The presence of the necessary party/
parties are vital and important to pass any decree between the parties.

When any party or parties are added mistakenly to the suit under code of civil
procedure, 1908 are terms as mis joinder of parties cpc. And the party which was
added mistakenly to the suit or misjoinder has nothing to do with the suit then in
that condition the party added mistakenly are known as mis joinder of parties cpc.
In addition, in the case where the misjoinder has joined the suit, the court should
not dismiss the suit instead, should or may order any decree as the order or decree
should not bind the misjoinder and the claim or relief should be for only the
necessary party only. As there is no need or any possibility to dismiss the suit on
the grounds of mis joinder of parties under cpc as it does not affect any kind of
interest of the parties to the suit.
Further, in addition to the above, the code of civil procedure deals with mis joinder
of parties under the provision of order 1 rule 3, as however, the necessary party are
important for any decree or judgement pass by the court as the concept of mis
joinder and non joinder in cpc is always dependent upon the parties of the suit.

Misjoinder of causes of action can be further categorized into three parts

namely:

▪ Misjoinder of plaintiffs and causes of action.

▪ Misjoinder of defendants and causes of action.

▪ Misjoinder of the claim.

CONCLUSION

The mis joinder and non-joinder of parties in cpc are not only fatal to the suit but
also the parties are important for the suit to pass any decree or judgments. As
stated in rule 9 of order 1 of CPC, 1908 which says that no suit can be defeated or
dismissed on the grounds of mis joinder and non joinder of parties in cpc suit. The
court is the one who has the power or authority to decide on the suit whether the
suit is maintainable or not as non-joinder plays a major role in the passing of any
further decree as non-joinder of necessary parties are the important parties to the
suit without whom the proper decree cannot be passed or difficult to conclude for
the hon’ble judge in the matter of the suit filed with the court. And as the
misjoinder are the parties which are added unintentionally or are not important to
the suit filled or added mistakenly to the suit hence the presence of the misjoinder
are not necessary and the present does not affect the decree passed by the hon’ble
court.