+rder 1 of the Code of Civil Procedure specifies the parties to suit and also carries provisions for

addition, deletion, and substitution of parties, joinder, non-joinder, and misjoinder of parties, and
objections to non-joinder, and misjoinder.

UNDERSTANDING “JOINDER” AND “MISJOINDER”

There is persistent anxiety while filing a civil suit as if all the parties to the suit are taken into
consideration for an account or not. Additionally, if any party(s) are missing, they can be taken
into consideration also and can be added or joined later in a suit as another issue, provided, the
CPC has any provision to remedy to add party(s) to the suit by the procedure of “joinder” and the
remaining pertains to the discretion of the Honorable Court under Order1- rule 2 and rule 3 read
with Order 2 rule 3 and rule 4 of the CPC

Joinder of parties means to add all persons concerned in a particular

dispute to the suit. Parties can be joined at anytime, subjected to the
conditions laid down in the Code. Order 1 Rule 1 of the Code states
when a person may be joined as plaintiff:

“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”

The first landmark case which discussed this provision was the case
of Haru Bepari and Ors. vs. Roy Kshitish Bhusan Roy Bahadur and
Ors, where 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”.

This view was accepted by many other judgments that followed this
case. It is key to note the decision given by the Bombay High Court in
the case of Paikanna Vithoba Mamidwar and Anr. vs. Laxminarayan
Sukhdeo Dalya and Anr., where the Court decreed that, “It is not,
therefore, necessary any more that there must be identity of interest or
identity of causes of action. Only necessary is the involvement of
common question of law or fact.”
Joinder of Plaintiffs:
Anybody or anyone may join in one suit as plaintiffs as per the required conditions under Rule 1
of Order 1. These conditions that are necessary to be consummated are the right to relief claiming
to exist in each of the plaintiffs that come out of the same act of transaction; and the case is such
of a character that, if such person got separate suits, any common question of law or question of
fact may arise.

Joinder of Defendants:
Just the opposite to the joinder of plaintiffs, that, a persona can join as a defendant as per the
provisions of Rule 3 of Order 1. The conditions that are necessary to be satisfied in the case of a
defendant is the right to relief claiming to exist against them comes out of the same act of
transaction; and the case is of such a nature that, if separate suits are brought against such a
person, any common question of law or question of fact may arise.

This was provision explained by the Supreme Court in Bachu Bhai

Patel vs. Harihar Behera & Anr., where it seen 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.”
THE NECESSARY PARTIES TO A CIVIL
SUIT
A necessary party is that party without whom a claim or allegation cannot be settled by the
Honorable Court legally. In layman’s terms, in the absence of a “necessary party”, no efficacious
and absolute decree can be passed by the Court.

In Benaras Bank v. Bhagawan Das Ltd. [A.I.R. 1947 All. 18], the Honorable Bench of the High
Court of Allahabad specified two tests that would determine the questions about whether a
specific party is a necessary party to a proceeding. The tests are as follows:
 A right of relief has to be present against such a party with regard to the matters involved
in the suit.
 In the absence of such a party, the court must not be in a position to pass an efficacious
decree.
Nonetheless, the aforementioned tests, as provided by the Honorable Bench of Allahabad High
Court were explained as true tests by the Honorable Supreme Court of India in Deputy
Commissioner, Hardoi v. Rama Krishna.
MISJOINDER OF PARTIES
The joinder or incorporation of any person as a party to a suit, opposite to the provisions of the
Code is known to be a misjoinder. Grounds for a court ruling that there is a misjoinder
incorporate that:

 The parties to the suit do not have the same rights to a judgment.
 They have a conflict of interests.
 The situations in each allegation must be unique or contradictory.
 Even to a bit, the defendants are not involved in the same transaction. In the case of a
criminal prosecution, the most usual cause for misjoinder is the defendants are found to
be involved in various claimed crimes or the charges are based on separate unique
transactions.
However, a misjoinder may be a misjoinder of plaintiffs or a misjoinder of the cause of action.

. In Ramdhan Puri v. Chaudhury Lachmi Narain, it has been held that

parties and causes of action, when once joined in the suit, there is no
absolute right to have them struck out but it is discretionary with the
Court to do so it thinks right. The mere fact of misjoinder is not by
itself sufficient to entitle the defendant to have the proceedings set
aside or action dismissed.

Misjoinder of Plaintiffs
Where two or more persons may have joined as Plaintiffs in one suit but the Right to Relied
claimed to exist in each plaintiff, does NOT come out of the same act or same transaction (or
series) and if separate suits were brought by each of the plaintiff, no common question of fact or
question of law may have arisen, there shall be a misjoinder of plaintiff.

Misjoinder of Defendants
In a similar way, where two or more persons may have joined as Defendants in one suit but the
Right to Relied claimed to exist in each defendant, does NOT come out of the same act or same
transaction (or series) and if separate suits were brought by each of the defendant, no common
question of fact or question of law may have arisen, there shall be a misjoinder of defendant.

Misjoinder of Cause of Action

This aspect may be coexisting with misjoinder of plaintiffs or misjoinder of defendants. Hence,
the subject may be considered pertaining to the following heads.

Misjoinder of Plaintiffs and Cause of Action

Where there are two or more plaintiffs in a suit and two or more causes of action, the plaintiffs
shall be interested jointly in all the causes of action. If not, the case is one of misjoinder of
plaintiffs and cause of action.

Misjoinder of Defendants and Cause of Action: Multifariousness

 Where there are two or more defendants in a suit and two or more causes of action, the suit will
be bad for misjoinder of defendants and causes of action, nonetheless, if unique causes of action
are joined against different defendants separately, such a misjoinder is technically called
multifariousness or assortment.

 When two or more defendants are joined together and the test given
under Rule 3 does not satisfy, then the joinder of such defendants
and their respective cause of actions, is known as multifariousness
of suit. The plaintiff is dominus litis having domain in suit.
(The Doctrine of Dominus Litus is a fundamental principle in civil
litigation. It means that the plaintiff, as the master of the suit, has
the right to decide who should be the parties to the suit. However,
this doctrine is subject to the provisions of Order 1, Rule 10 of the
CPC.)

NONJOINDER OF PARTIES TO A CIVIL SUIT

When a necessary party to the suit has not been joined to the suit, it is
deemed to be a case of non-joinder. It is a situation where certain
persons are missing from the suit without whom no effective
conclusion can be reached in the case. The non-joinder of parties can
be classified as, nonjoinder of necessary parties and, nonjoinder of
persons who make the court’s job convenient, that is necessary parties
and proper parties respectively.

Nonjoinder of parties cannot be deemed as a ground for dismissing a

suit, as any party missing from the suit can be later joined according
to Order 1 Rule 1 or 3, as per the discretion of the court. The absence
of necessary parties means those parties from whom the cause of
action against are not included in the proceedings, due to which the
court cannot decree effectively. In such situations, the court may
dismiss the suit but it is not necessary.

Order 1 Rule 9 states that no suit shall be dismissed in case

nonjoinder:
“9. Misjoinder and nonjoinder. —No suit shall be defeated by reason
of the misjoinder or nonjoinder 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.]”
Thus, where the non-joined party is merely a proper party and not
necessary, the suit is not eligible to be dismissed, however where the
party in question is absolutely necessary to ensure that justice is
delivered effectively, such a case may be dismissed according to the
discretion of the court.

The plea of non-joinder, however, should be raised at the earliest

possible stage. Where such a plea is raised by the defendant at the
earliest stage, and the plaintiff refuses to include the missing party, he
cannot later on file to amend his mistake.

In the case of Mohan Raj v. Surendra Kumar Taparia and Ors., the
Supreme Court stated that, “No doubt the power of amendment is
preserved to the Court and Order 1, Rule 10 enables the Court to
strike out parties but the Court cannot use Order 6, Rule 17 or Order
1, Rule 10 to avoid the consequences of non-joinder for which a
special provision is to be found in the Act. The Court can order an
amendment and even strike out a party who is not necessary. But
when the Act makes a person a necessary party and provides that the
petition shall be dismissed if such a party is not joined, the power of
amendment or to strike out parties cannot be used at all. The Civil
Procedure Code applied subject to the provisions of the
Representation of the People Act and any rules made thereunder.
When the Act enjoins the penalty of dismissal of the petition for non-
joinder of a party the provisions of the Civil Procedure Code cannot
be used as curative means to save the Petition.”

In Narendra Singh v. Oriental Fire and General Insurance Co. Ltd.,

the benefit of Section 39 of the Motor Vehicles Act was extended to
the plaintiff where the suit was found from a non-joinder of parties.
Consequently, non-joinder should not be interpreted too freely;
otherwise the parties shall stand to lose. If a partnership firm against
another firm files a suit, all the partners have to be impleaded as
plaintiffs but not their legal representatives.

Subsequently, in Brij Kishore Sharma v. Ram Singh, the Supreme

Court, reversing the decision of the trial court, held that the suit is not
maintainable. During the pendency of the suit, one of the parties died
and his legal representatives were neither notified now were added to
the suit. In the opinion of the court, the legal representatives should
have been brought on record.

Thus, provided the parties not necessary to the suit, the suit cannot be
dismissed merely on the basis of nonjoinder of parties.

DIFFERENCE BETWEEN MISJOINDER

AND NON JOINDER OF PARTIES
MISJOINDER NON JOINDER

When a party was added to the suit by mistake, it is When a party is necessary to the suit and he was not
misjoinder. added to the suit, he is non-joinder.

No probability of dismissal as it won’t be of any use There are probabilities of dismissing the suit with
to the interest of the parties. regards to the decree of the order.