PARTIES TO A SUIT
Who are parties to a suit?
Whenever a suit is filed in any court, some basic elements must be present at the time of institution of suit like there must be cause of action, there must be two or more opposing parties and some relief must be claimed by parties etc. Opposing parties is a main essential element of a suit because without opposing parties no suit can be filed in any court.
Order 1 of Code of Civil Procedure, 1908, deals with the provisions of parties to a suit. This Order deals with the provisions of joinder of plaintiffs, joinder of defendants, representative suit, mis- joinder of parties and non- joinder of parties.
According to the provisions of Code of Civil Procedure, 1908, there is no limit of parties in any suit. ‘N’ number of parties can file a suit against one or more defendants. But, if various parties are entitled to file a suit against any other party then our Judicial System insists all of them to file one suit against that person instead of filing separate suits and Order 1 Rule 1 of Code of Civil Procedure, 1908, states the conditions which have to be fulfilled if parties want to file one suit against opposite party and these are:
- The right to relief alleged to exist in each plaintiff arises out of the same act or transaction; and
- The case is of such a character that, if such persons brought separate suits, any common questions of law or fact would arise
In the leading case of Sudhansu Sekhar v. State of W.B., AIR 1972 Cal 320, the Hon’ble court held that the word “and” between both the clauses make it clear that both the above conditions should be fulfilled.
Moreover, in the leading case of Iswar Bhai v. Harihar Behera, (1999) 3 SCC 457: AIR 1999 SC 1341, the Hon’ble Court held that the primary object of Rule 1 is to avoid multiplicity of proceedings and unnecessary expenses.
Whereas Order 1 Rule 3 provides for joinder of defendants if there are more than one defendant. According to this rule, all the defendants can be joined in one suit only if following conditions are satisfied:-
- 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
- If separate suits were brought against such persons, any common question of law or fact would arise
If both the above said conditions are fulfilled then only all the defendants can be joined in one suit.
In the leading case of Iswar Bhai v. Harihar Behera, (1999) 3 SCC 457: AIR 1999 SC 1341, the Hon’ble court held that the underlying object of Rule 3 is to avoid multiplicity of suits and needless expenses. The provision, hence, should be construed liberally.
According to the provisions of Code of Civil procedure, 1908, it is not mandatory for the court to join all plaintiffs or defendants in one suit. If it appears to the court that joinder of plaintiffs or defendants may embarrass or delay the trial of the suit then in such case the court may order to hold separate trials or make such other orders as may be expedient in the interest of justice.
In our Justice System two terms are very important. One is plaintiff who files a suit and another one is defendant against whom suit has been filed. But the Code of Civil Procedure, 1908, further classifies the term party into ‘Proper party’ and ‘Necessary party’.
In the leading case of Udit NARAIN Singh v. Board of Revenue, AIR 1963 SC 786, the Hon’ble court stated the difference between ‘Necessary party’ and ‘Proper party’. Hon’ble court stated that a necessary party is one whose presence is indispensable to the constitution of the suit and without whom no effective order can be passed whereas a proper party is one in whose absence an effective order can be passed, but whose presence is necessary for a complete and final decision on the question involved in the proceeding.
According to the provisions of the Code of Civil Procedure, 1908, the presence of both necessary party and proper party in a suit is important for the proper determination of rights and liabilities and for the proper disposal of suit. But sometimes parties file suit without joining necessary parties or proper parties or file a suit with another parties who are neither necessary parties nor proper parties. This is a situation of Non- joinder of parties and Mis- joinder of parties respectively and Order 1 Rule 9 of Code of Civil Procedure, 1908, deals with the provisions of Non- joinder and Mis- joinder of parties.
According to the Rule 9 of Code of Civil Procedure, 1908, a suit will not be dismissed only on the ground of non- joinder or mis- joinder of parties and the court will try the suit in a usual manner and determine the rights and liabilities of parties who are involved in the suit. This rule is applicable upon non- joinder of proper parties but it is not applicable upon non- joinder of necessary parties because in case of non- joinder of necessary party, a court cannot pass a decree and determine the rights and liabilities of the parties.
In the leading case of Jagan Nath v. Jaswant Singh, AIR 1954 SC 210, the Hon’ble court held that the general rule is that a suit cannot be dismissed only on the ground of non- joinder or mis- joinder of parties. Nor a decree passed by a competent court on merits will be set aside on the ground of mis- description of the defendant. However, this rule does not apply in case of non- joinder of a necessary party.
Moreover, according to Order 1 Rule 13 of Code of Civil Procedure, 1908, if any of the parties to the suit wants to raise an objection regarding non- joinder or mis- joinder of parties then he can raise that objection at the earliest opportunity. It means that he can raise that objection at or before the settlement of issues. If he does not raise that objection according to this rule then in such case it will be considered that the party has waived his right to raise an objection.