Institution of suits o Therefore, a conjoint reading of Section 26 and Order 4

clearly shows that a suit is to be instituted by:-

Meaning of suit
1. Presenting a Plaint;
o The term 'suit' has not been defined in the Code.
2. Plaint should be in duplicate;
o In Hansraj Gupta v. Official Liquidators of Dehradun-
Mussorie Electric Trarnways Co. Ltd., AIR 1933 the 3. Facts in plaint should be proved by affidavit;
Privy Council and in Pandurang Ramchandra v.
4. Plaint should be instituted either in court or to other
Shantibai Ramchandra, AIR 1989 the Supreme Court
officer as it appoints;
held that "Suit' means a civil proceeding instituted by
the presentation of a plaint. 5. Plaint should comply with rules contained in Order
6 and Order 7
o According to Section 2(1) of Limitation Act, 1963 'suit'
does not include an appeal or an application.

o In common parlance, the term "suit" is taken to include -----------------------------------------------------------------------

all proceedings of a judicial or quasi-judicial nature in
which the disputes of aggrieved parties are adjudicated Summons
before an impartial forum.
When the plaintiff files a suit, the defendant has to be
o Ordinarily, a suit is a civil proceeding instituted by the informed that a suit has been filed against him and that he is
presentation of a plaint. required to appear in the court to defend it. The intimation
which is sent to the defendant is called summon. Provisions
----------------------------------------------------------------------- relating to summons are given in Sections 27-29 and Order
5.
Essentials of suit
Meaning & Object of Summon
In Krishnappa v. Shivappa, ILR (1907), the court has held
that there are four essentials of a suit:- o Though summon has not been defined in the code,
according to the dictionary meaning, summon is a
1. Cause of action
document issued from the office of court of justice
2. Opposing parties calling upon a person to whom it is directed to attend
before a judge or officer of the court for a certain
3. Subject matter purpose.

4. Relief. o The object behind summon is to provide to the

defendant the opportunity as to what he has to say
against the prayer made by the plaintiff. This is in
----------------------------------------------------------------------- consonance with principle of natural justice as no one
can be condemned unheard [audi alteram partem].
Institution of suit

o Section 26 and Order 4 of the Code provides for

institution of suits. -----------------------------------------------------------------------

o Section 26 lays down that every suit shall be instituted Summon to defendant [Section 27 and Order 5 Rule 1]
by presentation of plaint or in such manner as may be o Order 5 deals with summons to a defendant which must
prescribed. It further states that in every plaint facts shall
be issued by the court when suit has been duly filed by
be proved by affidavit.
the plaintiff.
o Order 4 further lays down that every suit shall be
o Such summon shall call the defendant to appear and
instituted by presenting a plaint in duplicate to the court
answer the claim of plaintiff by filing written statement
or such other officer as it appoints. Further it states that
within 30 days from date of service. Every summons
every plaint shall comply with the rules contained in
should be in the forms prescribed in Appendix B to the
Orders 6 and 7, so far as they are applicable.
First Schedule of the Code.
o Section 27 of the Code provides that where a suit has 4. Full name and description of the person summoned.
been duly instituted, a summons may be issued to the
defendant to appear and answer the claim and may be 5. The name of the authority by which summoned proposed
served in manner prescribed on such day not. beyond to be served.
thirty days from the date of of suit. 6. Time, place and date
o This provision was amended by Act 46 of 1999 and the -----------------------------------------------------------------------
phrase 'on such day not beyond thirty days from the date
of institution of suit' was added. Mode of service of summons

o Supreme Court in Salem Advocate Bar Association v.

Union of India, (2003) explained that the object of the
amendment was to prevent plaintiff from delaying the
issuance of summons by not taking the necessary steps.
It fixes the outer time frame within which the plaintiff
has to take steps in order to get the summons issued.

o For example, if the suit is instituted on 01-01-2002, then

the corrrect address of the defendant and the process fee
must be filed in the court within thirty days from the
date of institution of suit.

----------------------------------------------------------------------- 1. Service of court [Rule 9]:

Exemption from appearance in person: o Summons to the defendant residing within the
jurisdiction of the court shall be served through court
Persons shall be exempted from appearance in person in the
officer or approved courier service, or by registered post,
following circumstances:
e-mail service, etc. or by any other permissible means of
1. If he resides outside the local limits of the court's ordinary communication.
original jurisdiction. [if he resides outside such limits, but at
o If the defendant resides outside the court's jurisdiction, it
a place less than 50 miles or 200 miles (in case public
conveyance is from court's house then he may be required to shall be served through an officer of the court within
appear in person] [Order 5 Rule 4] whose jurisdiction the defendant resides (Rule 9(4)). The
court shall treat refusal of acceptance as a valid service
2. Woman not appearing in public. [Section 144] [Rule 9 (5)].

3. Persons entitled to exemption under the Code. [Section

133]
2. Service by plaintiff [Rule 9-A]:
-----------------------------------------------------------------------
o The court may also permit service of summons by the
Essentials of summons plaintiff in addition to service of summons by the court.
It is also called dasti summons.
According to Order 5 Rule 1(3) of the Code every summons
shall be signed by the Judge or such officer as he appoints, 3. Personal or direct service [Rule 10-16, 18]:
and shall be sealed with the seal of the Court and further
must also be accompanied by a plaint. It shall contain a o Rule 10 to 16 and 18 deal with the personal or direct
direction whether the date fixed is for settlement of issues service of summons upon the defendant. This is an
only or for final disposal of the suit. ordinary mode of service of summons.

Following are the contents of summons:- Here, following principles must be remembered:

1. Summons shall always be writing (i) The summons must be served to the defendant in person
or to his authorized agent [Rule 12].
2. It shall be signed by the presiding officer of the court

3. It shall also bear the seal of the court

(ii) Where the defendant is absent from his residence and carried on business or personally works for gain. The court
there is no likelihood of him being found within reasonable can also order service by advertising in a daily newspaper
time at his residence and he has no authorized agent, that is circulated in the locality in which the defendant is
summons may be served on any adult male or female known to have last resided, or carried on business or
member of his family but not servant. [Rule 15] personally works for gain.

(iii) In a suit relating to any business or work against a 5. Service by post:

person not residing within court's jurisdiction, it may be
served to the manager or agent of carrying on such business Where the summons was properly addressed, prepaid and
or work [Rule 13]. duly sent by registered post and acknowledgement is lost or
not received by the court within 30 days from the date of
(iv) In a suit of immovable property, if service is not made to issue of summons, the court issuing the same shall declare
defendant or his authorized agent, it may be served on any that the summons has been duly served.
agent of the defendant in charge of property [Rule 14].
Thus, the court may adopt any of these modes accordingly
(v) Where there are two or more defendants, service shall be for serving summons on the defendant so that he is ensured
made on each of them [Rule 11]. fair trial and there is no delay in the progress of the suit.

Such service should be made by delivering or tendering the Irregularity in service of summons
copy thereof to the person who shall make an
acknowledgement of such service [Rule 16). The serving It has held that procedural irregularity in the service of
officer shall then make an endorsement on the original notice would not be bad in law and consequential action
summon accordingly as per Rule 18 of Order V of the Code. would be sustained unless the defendant is able to show that
substantial prejudice was caused due to procedural lapse in
4. Substituted service [Rule 17, 19-20]: making service to him. [Prabhin Ram Pukhan v. State of
Assam, (2015)].
o Substituted service means the service of summons by a
mode which is substituted for the ordinary mode of For example, A obtains by false representation an order for
service of summons. substituted service by giving to court to understand that B
had been avoiding service. In such a case, substituted service
Modes of substituted service: There are two modes of shall be deemed to have the effect of personal service upon
substituted service of summons: the defendant and will be valid unless he shows any
prejudice caused to him due to such service.
(a) Service without the order of court
Service of summon to defendant outside India
(b) Service with the order of court
Order V Rule 25 provides that where the defendant resides
(a) Service without the Court's order: Order 5 Rule 17 lays
out of India and has no agent in India to accept service, the
down the circumstances when substituted service can be
summons should be addressed to the defendant at the place
made on the defendant without the order of court. Where the
where he is residing and sent to him by post, courier service
defendant refuses to accept service or cannot be found die
or fax message or e-mail service or by any other appropriate
after due and reasonable diligence then in such a case, the
means, if there is communication between such place and
serving officer must affix a copy of the summons on the
the place where court is situated.
outer door or some other conspicuous part of the house in

or personally works for gain. ✓

which the defendant ordinarily resides or carries on business Service to defendant who is in jail

Order V Rule 29 provides that where the defendant is in

(b) Service with the order of court: Order 5 Rule 20 provide prison, the service of summons is to be made on the officer
for substituted service. Such a mode of service can be in charge of the prison.
adopted by the court when it is satisfied that the defendant is
keeping away for the purposes of avoiding service or for any
other reason the service cannot be made in an ordinary
manner. In such a case the court shall order that a copy of Que. The court issues a summon against A under Section 30
the summons be affixed on some conspicuous place in the of the Code of Civil Procedure, 1908 but he does not appear
Courthouse and also on some conspicuous part of the house before the court. What steps can be taken by the court to
in which the defendant is known to have last resided or compel his attendance?
A.: Section 32 of the Code provides the steps which can be - The right to relief alleged to exist in each plaintiff
taken by the court to compel the attendance of any person to arises out of the same act or transaction either
whom summons has been issued under Section 30. jointly, severally or alternatively, and
Following steps can be taken against a person who does not
appear before the court despite issuance of summons under - The case is of such a nature that if such persons
Section 30: brought separate suits, any common questions of
law or fact would arise.
1. Issue a warrant for his arrest
o The word 'and' between clause a and b makes it clear
2. Attach and sell his property that both the above conditions should be fulfilled.

3. Impose a fine not exceeding five thousand rupees o For example, A and B were assaulted by C. Here, A and
B can jointly bring against C an action for damages for
4. Order him to furnish security for his appearance and in
assault because right to relief existing in A and B arose
default commit him to civil prison.
out of same transaction and same question of fact and
law will be involved if separate suits were brought by A
and B against C.
Parties to Suit
o Similarly, where A publishes a book under the name The
o Order 1 of the Code deals with the parties the suit. Oxford and Cambridge Publication', both the
'Parties' is one of the essentials of the suit. Universities, i.e, the Oxford and Cambridge can jointly
sue A to restrain A from using the title.
o It also with the joinder, mis-joinder, non-joinder of
parties, addition, deletion of parties and also o The primary object of rule 1 is to avoid multiplicity of
representative suit. proceedings and unnecessary expenses.

o Generally, to a suit there exist two parties namely Joinder of defendants [Rule 3]
plaintiff and defendant.
Rule 3 provides for joinder of defendants. It states that all
persons may be joined in one suit as defendants if the
following two conditions are satisfied:
Joinder of Parties
(i) the right to relief alleged to exist against them arises out
 Joinder of Plaintiff [Or.1 R1]
of the same act or transaction; and
 Joinder of Defendent [Or.1 R3]
(ii) the case is of such a character that, if separate suits were
o If the cause of action arises in favour of or against brought against such persons, any common question of law
multiple persons then the question of joinder of plaintiff or fact would arise.
and defendant arises. The word "and" makes it clear that both the conditions are
o If the act is done by a single individual against a single cumulative and not alternative.
individual then the of joinder of parties does not arise. The underlying object of Rule 3 is to avoid multiplicity of
suits and needless expenses. The provision, hence, should
o Here, we essentially deal with joinder of plaintiffs and
be construed liberally.
defendants. The question of joinder of parties is a matter
of procedure and not of substantive right. For example, An altercation takes place between A on one
hand and B and C on the other. B and C simultaneously
o Object: The primary object of joinder of parties is to
assault A. A may join B and C as defendants in one suit for
ensure that all suits are decided finally and conclusively
damages for assault as the right to relief against them arose
on merits in presence of all parties.
through same act and common question of fact and law will
Joinder of Plaintiffs [Rule 1] be involved if separate suits were brought against B and C.

o According to Rule 1, all the persons may be joined in No joinder if delay is caused: Even if the conditions laid
one suit as plaintiffs if: down under Rule 1 and 3 for joinder of plaintiffs and
defendants respectively are fulfilled, yet the court may order
separate trials if such joinder embarrass or delay the trial of whether a particular party is a necessary parry to a
suit [Rule 4]. proceeding:

Consolidation of Suits: Supreme Court in Prem Lal Nahata - There must be a right to some relief against such
v. Chandi Prasad Sikaria, (2007) held that the court has the party in respect of matter in issue.
power to consolidate suits in appropriate cases.
Consolidation is a process by which two or more causes or - It is not possible to pass an effective decree in his
matters are by order of court combined and united and absence.
treated as one cause or matter. The main purpose of
Difference between Necessary Party & Proper Party
consolidation is to save cost, time and effort and to make the
conduct of several actions more convenient by treating them
as one action. The jurisdiction to consolidate the suit arises.

1. When there are two or more matters or causes pending in

the court and it appears to the court that some common
questions of law or fact arises in both or all the suits or

2. The rights to relief claimed in the suits are in respect of or

arises out of same transactions or series of transactions or

3. For some other reason it is desirable to make an order

consolidating the suit.

Necessary and Proper Parties

Meaning

o A necessary party is one against whom a relief is sought

and in whose absence no decree or effective order can be
passed. Non-Joinder and Mis-Joinder of Parties

o A proper party is one in whose absence effective order Meaning

can be passed but whose presence is necessary for
o Where the person is a necessary or proper party to the
complete and final decision of the case [Globe Ground
(India) Employees Union v. Lufthansa German Airlines, suit and he has not been joined as a party then it is a case
(2019)]. of non-joinder of parties.

o If the necessary party is not impleaded the suit is liable o If two or more persons are joined as a party to the suit in
to be dismissed. contravention of Order 1 R.1 and 3 and where they are
neither necessary party nor proper party then it is a case
o For example, in a partition suit, all sharers are necessary of mis- joinder of parties.
parties and in a suit for eviction of a tenant, the sub-
tenant would be proper party
Effect of non-joinder and mis-joinder
Object of rule of necessary party
o Order Rule 9 lays down general rule for non-joinder and
o Supreme Court in Anil Kumar v. Shivnath, (1995)
mis-joinder of parties.
observed that the object of rule of necessary party is to
bring on record all persons who are parties to the dispute o It lays down that suit cannot be defeated only on the
relating to the subject matter so as to avoid multiplicity ground of non-joinder or mis-joinder of parties.
of proceedings and inconvenience. However, proviso to Rule 9 states that this rule is not
Test to determine necessary party applicable in case of non-joinder of necessary party.

o Supreme in Kasturi v. Iyyamperumal, AIR 2005 laid o Therefore, it means that if a necessary party has not been
down following two tests for determining the question joined in the suit then the suit can be defeated. In other
 words it can also be said that joinder of necessary party 2. Such mistake must be bona fide,
is very much essential for the suit.
3. The substitution or addition of the plaintiff is
o Similarly Section 99 and 99-A also provides that no necessary for the determination of the real matter in
decree shall be reversed, substantially varied or dispute.
remanded in appeal on account of any mis-joinder or
non-joinder of parties. o For example, D is an agent of A. D, under a bona fide
mistake files a suit against B in his own name. The name
o Decree can be so reversed if:- of principal A can be substituted by the court.

- it affects merits of the case, or o Such amendment may be made at any stage of the suit or
even at appellate stage. A person cannot be added as
- if jurisdiction of the court. plaintiff without his consent.

But non-joinder of necessary party is a serious defect and o The object of this provision is to protect the bona fide
would not be covered under Section 99. claims on technical ground of maintainability.

o Supreme Court in Competition Commission of India v.

Steel Authority of India Ltd., (2010) observed that court
Objections as to non-joinder and misjoinder
has to be satisfied that amendment under Rule 10(1) is
Order 1 Rule 13 provides for objections as to non-joinder or necessary on account of bonafide mistake on part of
mis-joinder of parties. It provides that:- original plaintiff.

(a) All objections on the ground of non-joinder or mis-

joinder of parties shall be taken at the earliest possible
Striking out or adding parties
opportunity; and
Rule 10(2) provides for adding or striking out parties. It
(b) In all cases, where issues are settled, at or before such
provides that the court may either strike out or add parties on
settlement, unless the ground of objection has subsequently
following two grounds:-
arisen.
1. Person ought to have been joined as plaintiff or
(c) Any such objection not so taken shall be deemed to have
defendant, but he was not so joined;
been waived.
2. Without the presence of that person the question
Striking out, Addition or Substitution of Parties
involved in the suit cannot be completely decided.
o Order 1 Rule 10 deals with striking our, addition and
substitution of parties.
In Anil Kumar v Shivnath, (1995), Supreme Court has
o As a general rule it is the discretion of plaintiff to choose
observed that the object of this rule is to bring on record all
his adversary because he is the dominus litis.
persons who are parties to the dispute relating to the subject-
o The courts should not interfere in it but court also has a matter so as to avoid multiplicity of proceedings and
duty to do justice and to see all persons who ought to be inconvenience.
involved in the controversy are present record in order to
Supreme Court in Mohammad Hussain Gulam Ali v.
avoid multiplicity of suit and finally decide all the issues
Corporation of Greater Bombay, (2020) held that plaintiff is
involved in it.
dominus litis and cannot be forced to add any person as
party to his suit unless it is held keeping in view pleadings
and relief claimed therein that person sought to be added as
Addition or substituting plaintiff party is a necessary party and without his presence neither
suit can be proceeded not any relief can be granted.
o Rule 10(1) provides for adding or substituting plaintiffs.
Following conditions must be fulfilled:- Further, Supreme Court in Kasturi v lyyamperumal, (2005)
held that the question of jurisdiction of the court to invoke
1. The suit has been filed in the name of wrong Order 1 Rule 10 to add party who was not made party in the
plaintiff;
suit shall not arise unless a party proposed to be added has a o In making an order of transposition of defendant to
direct legal interest in the controversy. plaintiff the court has to see whether the applicant has a
substantial question to be decided against the other
In Pankajbhai Rameshbhai Zalavadiya v. Jethabhai defendants.
Kalabhai Zalavadiya, (2017) Supreme Court held that the
expression 'to settle all questions involved in Order 1 Rule ---------------------------------------------------------------------
10 is susceptive of liberal and wide interpretation so as to
adjudicate all questions pertaining to the subject matter Representative suit
thereof. The court is clothed with power to secure aforesaid
o Order 1 Rule 8 of the Code deals with the representative
result with judicious discretion.
suit which enables filing of a single suit on behalf of
other persons interested in subject-matter of the suit.

Considerations to be kept in mind o Thus, it is a rule of convenience enacted to avoid

multiplicity of proceedings.
Two considerations must be kept in mind before exercising
these powers:- o General rule of litigation is that all persons interested in
a suit must be joined as parties to it.
1) Plaintiff is the best judge of his interest and it is for him
to choose his opponent against whom the relief can be o Order 1 Rule 8 provide an exception to this general rule.
claimed; Representative suit is a suit filed by or against one or
more persons on behalf of themselves and others having
2) If the court comes to a conclusion that the presence of the same interest in the suit.
person is necessary to effectively decide the suit then
irrespective of the wish of the plaintiff, the court may o The concept of representative suit states that when there
join the person as a party. are number of persons similarly interested in a suit, one
or more of them can, with the permission of the court or
Power under Rule 10(2) can be exercised either on the upon a discretion from the court, sue or be sued on
application of the party or suo motu by the court. behalf of themselves.
Order of addition, deletion, substitution or transposition of o Supreme Court in K.S. Varghese v. Saint Peter's and
parties can be made at any stage of the suit irrespective of
Paul's Syrian Orthodox Church, (2017) held that Order
the law of limitation.
1 Rule 8 is an exception to the general rule that all
persons interested in the suit are to be made parties
thereto. Order 1 Rule 8 presupposes that there are
numerous persons having the same interest and one or
more such persons with the permission of the court may
sue or be sued on behalf of persons so interested. Decree
in such is binding on all such persons for whose behalf
for whose benefit suit is instituted.

Object: Object of this provision is to save time and expense,

Transposition of parties avoid multiplicity of suits and prevent harassment of parties.
It is merely an enabling provision. It does not compel an
o Transposition of parties means substitution of defendant individual to represent body of persons.
in place of plaintiff.

o Supreme Court in Kiran Tandon v. Allahabad

Development Authority, AIR 2004 observed that court Conditions:
has power under Order 10 Rule 10(2) to transfer a
Though not defined in the Code, a representative suit is a
defendant to the category of plaintiff. Transposition of
suit filed by or against one or more persons on behalf of
parties is made to avoid multiplicity of proceedings.
themselves and others having the same interest in the suit.
o Transposition is made in two conditions (i) when the suit
For the rule to apply, the following conditions must be
is withdrawn by the plaintiff and (ii) when it is
fulfilled:
abandoned by the plaintiff.
 a) There must be numerous parties. o Since the judgment in a representative suit operates as
res judicata and binds all the parties so represented [ser
b) They must have same interest in the suit. Rule 8(6) r/w Section 11 Explanation VI], it is therefore
c) The permission must have been granted or direction necessary that notice shall be given to all such persons
must have been given by the court. otherwise the decree will not bind them.

d) Notice must have been issued to the represented o Such notice can be made by personal service or if not so
parties. practicable, by public advertisement [Rule 8(2)]. It is the
duty of the court to see that proper notices are issued
1. Numerous persons: which sufficient to provide information to the persons
interested in the suit.
o This is the first requirement for filing representative suit
under Rule 8. The term 'numerous' does not mean
'numberless".
Abandonment or compromise:
o The 'numerous implies group of persons who can be so
o No abandonment or withdrawal or compromise can be
as to enable the court to recognize all the participants in
the suit. made in a representative suit unless:

o For example, a representative suit on behalf of villagers 1. The court has given notice to all persons interested
in the suit [Rule 8(4)]; and
in reference to village property can be filed under this
rule. [Hasan Ali v. Mansoor Ali, AIR 1948 PC 66). 2. The court has granted leave to compromise such suit
[Order 23 Rule 3B].
2. Same interest:
Supreme Court in Aliyathammuda Beethathebiyyappura
o All concerned and represented in the suit must have
Pookoya v. Pattakal Cheriyakoya,(2019) held that in order
same interest in the suit. It is not necessary that cause of
to compromise in a representative suit, it is necessary to
action must be the same but their interest must be
obtain leave of the court. Before the grant of leave, the court
common or they all must have a common grievance
has to give notice in such manner as it may think fit to such
[Explanation to Rule 8).
persons as may appear it to be interested in the suit.
o For example, in the case of T.N. Housing Board v. T.N.
Who many institute representative suit:
Ganpathy, AIR 1990, residential building was allotted to
the applicants belonging to low-income group. After o A representative suit can be filed by one or more persons
settlement of price, excess demand was made by the with the permission or direction of court.
Board which was challenged by allotrees. It was
contended that such suit is not maintainable as separate o Rule 8(3) provides that a person may also apply to be
demands notice were issued against each of the allottees added as a party after such suit is instituted in court.
giving arise to separate cause of action. the Supreme
Court rejected the contention and held that suit was o Rule 8(5) further provides that persons suing or
maintainable. defending must proceed with due diligence otherwise
they will be removed as a party from such suit.
3. Permission or direction of court:

o The representative suit can be filed only if the court

grants permission to sue or be sued on behalf of other or
if the court itself directs two or more persons to sue or
be sued in representative character.

o Such permission may be express or implied because no

particular form has been given by the Code.

4. Notice: