Order I – Parties to Suits

Rule 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.


Rule 2: Power of Court to order separate trials.—

Where it appears to the Court that any joinder of plaintiffs may embarrass or delay the trial of the suit, the Court may put the plaintiffs to their election or order separate trials or make such other order as may be expedient.


Rule 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.


Rule 3-A: Power to order separate trials where joinder of defendants may embarrass or delay trial.—

Where it appears to the Court that any joinder of defendants may embarrass or delay the trial of the suit, the Court may order separate trials or make such other order as may be expedient in the interests of justice.


Rule 4: Court may give judgment for or against one or more of joint parties.—

Judgment may be given without any amendment—

(a) for such one or more of the plaintiffs as may be found to be entitled to relief, for such relief as he or they may be entitled to;

(b) against such one or more of the defendants as may be found to be liable, according to their respective liabilities.


Rule 5: Defendant need not be interested in all the relief claimed.—

It shall not be necessary that every defendant shall be interested as to all the relief claimed in any suit against him.


Rule 6: Joinder of parties liable on same contract.—

The plaintiff may, at his option, join as parties to the same suit all or any of the persons severally, or jointly and severally, liable on any one contract, including parties to bills of exchange, hundis and promissory notes.


Rule 7: When plaintiff in doubt from whom redress is to be sought.—

Where the plaintiff is in doubt as to the person from whom he is entitled to obtain redress, he may join two or more defendants in order that the question as to which of the defendants is liable, and to what extent, may be determined as between all parties.


Rule 8: One person may sue or defend on behalf of all in same interest.—

(1) Where there are numerous persons having the same interest in one suit,—

(a) one or more of such persons may, with the permission of the Court, sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested;

(b) the Court may direct that one or more of such persons may sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested.

(2) The Court shall, in every case where a permission or direction is given under sub-rule (1), at the plaintiff’s expense, give notice of the institution of the suit to all persons so interested, either by personal service, or, where, by reason of the number of persons or any other cause, such service is not reasonably practicable, by public advertisement, as the Court in each case may direct.

(3) Any person on whose behalf, or for whose benefit, a suit is instituted, or defended, under sub-rule (1), may apply to the Court to be made a party to such suit.

(4) No part of the claim in any such suit shall be abandoned under sub-rule (1), and no such suit shall be withdrawn under sub-rule (3), of Rule 1 of Order XXIII, and no agreement, compromise or satisfaction shall be recorded in any such suit under Rule 3 of that Order, unless the Court has given, at the plaintiff’s expense, notice to all persons so interested in the manner specified in sub-rule (2).

(5) Where any person suing or defending in any such suit does not proceed with due diligence in the suit or defence, the Court may substitute in his place any other person having the same interest in the suit.

(6) A decree passed in a suit under this rule shall be binding on all persons on whose behalf, or for whose benefit, the suit is instituted, or defended, as the case may be.

Explanation.—For the purpose of determining whether the persons who sue or are sued, or defend, have the same interest in one suit, it is not necessary to establish that such persons have the same cause of action as the persons on whose behalf, or for whose benefit, they sue or are sued, or defend the suit, as the case may be.


Rule 8-A:  Power of Court to permit a person or body of persons to present opinion or to take part in the proceedings.—

While trying a suit, the Court may, if satisfied that a person or body of persons is interested in any question of law which is directly and substantially in issue in the suit and that it is necessary in the public interest to allow that person or body of persons to present his or its opinion on that question of law, permit that person or body of persons to present such opinion and to take such part in the proceedings of the suit as the Court may specify.


Rule 9: Misjoinder and non-joinder.—

No suit shall be defeated by reason of the misjoinder or 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:

Provided that nothing in this rule shall apply to non-joinder of a necessary party.


Rule 10: Suit in name of wrong plaintiff.—

(1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.

(2) Court may strike out or add parties.—The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.

(3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.

(4) Where defendant added, plaint to be amended.—Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant.

(5) Subject to the provisions of the Indian Limitation Act, 1877 (15 of 1877), Section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons.


Rule 10-A: Power of Court to request any pleader to address it.—

The Court may, in its discretion, request any pleader to address it as to any interest which is likely to be affected by its decision on any matter in issue in any suit or proceeding, if the party having the interest which is likely to be so affected is not represented by any pleader.


Rule 11: Conduct of suit.—

The Court may give the conduct of a suit to such person as it deems proper.


Rule 12: Appearance of one of several plaintiffs or defendants for others.—

(1) Where there are more plaintiffs than one, any one or more of them may be authorised by any other of them to appear, plead or act for such other in any proceeding; and in like manner, where there are more defendants than one, any one or more of them may be authorised by any other of them to appear, plead or act for such other in any proceeding.

(2) The authority shall be in writing signed by the party giving it and shall be filed in Court.


Rule 13: Objections as to non-joinder or misjoinder.—

All objections on the ground of non-joinder or misjoinder 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.


IMPORTANT CASE LAWS

1. Scheme of Order I

Prem Lala Nahata v. Chandi Prasad Sikaria, (2007) 2 SCC 551: “…….Order 1 deals with parties to a suit and provides who may be joined as the plaintiffs and who may be joined as the defendants. It also deals with the power of the court to direct the plaintiffs either to elect with reference to a particular plaintiff or a particular defendant or to order separate trials in respect of the parties misjoined as the plaintiffs or the defendants. It also gives power to the court to pronounce judgment for or against one of the parties from among the parties who have joined together or who are sued together. The order also specifies that a suit shall not be defeated by reason of the misjoinder or non-joinder of parties, so along as in the case of non-joinder, the non-joinder is not of a necessary party. The Code also gives power to the court to substitute the correct person as a plaintiff or add parties or strike out parties as plaintiffs or defendants, at any stage, if it is found necessary.”


2. Joining of Parties as Plaintiff or Defendant under Order I

Heavy Electricals Employees’ Union v. State Industrial Court, AIR 1976 MP 66: “Rule 1 of Order 1 of the CPC provides that all persons may be joined in one suit as plaintiffs in whom 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, whether jointly or severally, where, if such persons brought separate suits, any common question of law or facts would arise. Rule 2 of Order 1 of the CPC, however, empowers the Court to order separate trial where it appears that the joinder of plaintiffs may embarrass or delay the trial of the suit. Rule 3 of the said Order lays down who may properly be joined as defendant. Even though the provisions of the Code of Civil Procedure are not applicable to the petitions under Article 226 of the Constitution, the principles underlying them are applicable and it is open to the Court to direct separate cases to be registered where a number of persons have been joined as petitioners claiming similar reliefs against a party on the basis of distinct and separate causes of action. In such a case the Court may for the sake of convenience allow the petitioners to prosecute a joint petition subject to the condition that each of them pays a separate court-fees on the principle underlying Section 17 of the Court Fees Act. Separate court-fees can be demanded from each of the petitioners only where it appears to the Court that causes of actions are distinct and separate and each of the petitioners should in fact have filed a separate petition for the relief claimed by him even though it was claimed on similar grounds……..”


3. Rule 10 and the term ‘necessary party’ used in Rule 9, explained and interpreted by the Apex Court

Mumbai International Airport (P) Ltd. v. Regency Convention Centre & Hotels (P) Ltd., (2010) 7 SCC 417 :

13. The general rule in regard to impleadment of parties is that the plaintiff in a suit, being ‘dominus litis’, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. But this general rule is subject to the provisions of Order 1 Rule 10(2) of the Code of Civil Procedure (“the Code”, for short), which provides for impleadment of proper or necessary parties.…..

14. The said provision makes it clear that a court may, at any stage of the proceedings (including suits for specific performance), either upon or even without any application, and on such terms as may appear to it to be just, direct that any of the following persons may be added as a party: (a) any person who ought to have been joined as plaintiff or defendant, but not added; or (b) any person whose presence before the court may be necessary in order to enable the court to effectively and completely adjudicate upon and settle the questions involved in the suit. In short, the court is given the discretion to add as a party, any person who is found to be a necessary party or proper party.

15. A “necessary party” is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the court. If a “necessary party” is not impleaded, the suit itself is liable to be dismissed. A “proper party” is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in dispute in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the plaintiff. The fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance.”


4. Challenge to joinder of parties

Kasturi v. Iyyamperumal, (2005) 6 SCC 733: “……………on the question of jurisdiction this Court has clearly laid down that it is always open to the Court to interfere with an order allowing an application for addition of parties when it is found that the courts below had gone wrong in concluding that the persons sought to be added in the suit were necessary or proper parties to be added as defendants in the suit instituted by the plaintiff-appellant. In that case also this Court interfered with the orders of the courts below and rejected the application for addition of parties………..”


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