Mg Moe Yan Htet

Parties to the Suit

Plaintiff in Suit
A plaintiff is someone who makes a legal complaint against someone else in court. 1
According to Black Law dictionary, “A person who brings an action; the party who
complains or sues in a personal action and is so named on the record.” 2 In other words, a
plaintiff is the party who initiates a lawsuit by filing a complaint against a defendant or
defendants. The plaintiff claims that the defendant has violated their legal rights or caused
harm.
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.3
Under the present rule several persons may join as plaintiffs in one suit, though their
causes of act ion are separate and distinct, provided that (i) the right to relief, alleged to exist
in them, arises out of the same act or transaction or series of acts or transactions;4 and (ii) the
case is of such a character that, if such persons brought separate suits, any common question
of law or fact would arise.4
According to U Ko Ko Vs. Daw Tin Kywe 1998 B.L.R.(F.B) 141, the suit to removal
of a person who is in the house with permission is not the same as the suit to removal a
trespasser. If more than one person has given permission, one of the grantors may revoke the
permission but the others may continue to grant it. In such a case, all grantors must file a
lawsuit.

Powers 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.5
This rule refers to a suit brought by several plaintiffs, in respect of the same act or
transaction, but the causes of act ion are so distinct that it is not convenient to dispose them at
one trial.The court may put the plaintiffs to their election as to which of them will proceed
with the suit or may order separate trials or may make such other order as may be expedient. 6
Who may be joined as defendant?
The person defending or denying; the party against whom relief or recovery is sought
in an action or suit.7 A defendant refers to an individual or entity who is being accused or
sued.
1
https://dictionary.cambridge.org/dictionary/english/plaintiff
2
Black’s Law dictionary, 4th edition, p.1309
3
Order 1,rule1 of The Code of Civil Procedure, 1909
4
Mulla : The Code of Civil Procedure, 18th Edition, p.1436
5
Order 1 rule 2 of The Code of Civil Procedure, 1909
6
Mulla : The Code of Civil Procedure, 18th Edition, p.1442
7
Black’s Law dictionary, 4th edition, p.507
 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.8
Under the present rule, all persons may be joined as defendants against whom any
right to relief in respect of the same act or transaction is alleged to exist; where if separate
suits were brought against such persons, any common question of law or fact could arise,
though the causes of action against the defendants may be different. A plaintiff is entitled
under this rule to join several defendants in respect of several and distinct causes of action
subject, however, to the discretion of the court to strike out one or more of the defendants on
the analogy of O 1, r 2, if it thinks it right to do so. Thus, as a general rule, where claims
against different parties involve or may involve a common question of fact bearing sufficient
importance in proportion to the rest of the action to render it desirable that the whole of the
matter be disposed of at the same time, the court will allow the joinder of defendants, subject
to its discretion as to how the action should be tried. It is not necessary that all the defendants
should be interested in all the reliefs or that their liability should be the same. On the other
hand, it is essential that there must be some link or nexus so that the condition as to the
existence of the same act or transaction or some series of acts or transactions may be
satisfied.9
The essentials of suit
According to the Code of Civil Procedure 1908, the essentials of a suit are(i) opposing
parties, (ii) a subject in dispute, (iii) a cause of action and (4) a demand of relief. All these
essentials must concur in every suit properly framed. O 1 deals with the joinder of parties. O
2 deals with the framing of suits. In framing a suit, the following three kinds of misjoinder
must be guarded against-
(a) Misjoinder of plaintiffs. Where there are more plaintiffs than one, the provisions of rule
apply. This rule relates to the joinder of plaintiffs. It provides in effect that two or more
persons may be joined as plaintiffs in one suit if the right to relief alleged to exist in each
plaintiff arises from the same act or transaction and there is a common question of law or of
fact. If not, they cannot be joined as plaintiffs in one suit, and they must bring separate suits.
If two or more persons are joined as plaintiffs in one suit in a case not covered by O 1, r 1, the
result is a misjoinder of plaintiffs. The objection on the ground of misjoinder of plaintiffs,
should be taken at the earliest possible opportunity; if not, it is to be deemed to have been
waived (O 1, r 13). Where such an objection is taken and the court finds it to be founded, the
court should not dismiss the suit (O 1, r 9), but the plaint may be allowed to be amended (O
6, r 17) by striking out the names of such persons as have been improperly joined as plaintiffs
(O 1, r 10, sub-r (2)), and the suit may, then, be proceeded with (O 1, r 9). In other words, an
objection on grounds of misjoinder of plaintiffs is not fatal to the suit.

8
Order 1 rule 3 of the Code of Civil Procedure, 1909
9
Mulla : The Code of Civil Procedure, 18th Edition, p.1443
(b) Misjoinder of defendants. This rule is the converse of r 1. It deals with joinder of
defendants. Where there are more defendants than one, the provisions of r 3 of this Order
apply. That rule relates to the joinder of defendants. It provides in effect that two or more
persons may be joined as defendants in one suit if the right to relief alleged to exist against
each of them arises from the same act or transaction and there is a common question of law or
of fact.
(c) Misjoinder of Causes of Action. A misjoinder of a cause of action may be coupled with a
misjoinder of plaintiffs, or it may be coupled with a misjoinder of defendants. There may also
be a misjoinder of claims founded on several causes of action. Thus, this subject may be
considered under the following three heads.
(d) Misjoinder of plaintiffs and causes of action. Where in a suit there are two or more
plaintiffs and two or more causes of act ion, the plaintiffs should be jointly interested in all
the causes of action. If the plaintiffs are not jointly interested in all the causes of act ion, the
case is one of misjoinder of plaintiffs and causes of action. O 2, r 3, read with O 1, r 1,
forbids such a misjoinder. The objection on the ground of misjoinder of plaintiffs and causes
of act ion should be taken at the earliest possible opportunity (O 2, r 7). As to the procedure
to be followed in the case of misjoinder of plaintiffs and causes of action, see notes to O 2, r
3, Procedure in case of misjoinder of plaintiffs and causes of action.
(ii) Misjoinder of defendant and causes of action: Multifariousness. Where in a suit, there are
two or more defendants and two or more causes of action, the suit will be bad for misjoinder
of defendants and causes of action, if different causes of act ion are joined against different
defendants separately (O 2, r 3 and O 1, r 3). Such a misjoinder is technically called
multifariousness. The objection on the ground of multifariousness should be taken at the
earliest opportunity (O 2, r 7).
(iii) Misjoinder of claims founded on several causes of action.10

Court may give judgment for or against one or more of joint parties
Under Order 1 rule 4, 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.
Where a suit has been filed against several defendants as co-trespassers but it is
dismissed against some of them for want of prosecution, a decree can still be passed against
the rest of them.The Code of Civil Procedure does not prescribe that a decree against some of
the defendants to a suit cannot be passed or that if suit is dismissed against one defendant, it
is required to be dismissed against other defendants also.11

Defendant need not be interested in all the relief claimed.

10
Mulla : The Code of Civil Procedure, 18th Edition, p.1437
11
Mulla : The Code of Civil Procedure, 18th Edition, p.1453
 It shall not be necessary that every defendant shall be interested as to all the relief
claimed in any suit against him.
Rule 5 is to be read with r 3 above. It provides in effect that where a suit is brought
against several defendants, the fact that every defendant is not interested in all the relief
claimed in the suit does not imply misjoinder of defendants.12

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.13
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. Scope of
the rule.14
Rule 7 applies only where the plaintiff is in doubt as to the person from whom he is
entitled to obtain redress. It does not enable a plaintiff to join separate causes of act ion
against different defendants in one action in a case where he could not do so under r 3
above.15
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.16
There would be misjoinder of parties if person having a separate cause of act ion file a
suit jointly, but it would not be so in a case where a plaintiff files a suit against more than one
person and a common question of law or fact would arise if separate suits were filed.391
There is also no question of misjoinder where the suit is in respect of the entire land, though
the defendants are in possession of separate portions of such land. In a particular case, an
application for the correction of misdescription of the defendant in the plaint was allowed, the
correction could not be incorporated in the plaint. However, the misdescription did not
mislead any party. In fact, the written statement and the documents in appeal carried the
correct name. It was held that the decree was valid. A misjoinder or non-joinder of parties is
not fatal to the suit.394 Where there is a misjoinder of parties, the name of the plaintiff or the
defendant who has been improperly joined may be struck out under r 10, sub-r (2) below, and
the case may be proceeded with.

12
Ibid,p.1453
13
Order1 rule 6 of the Code of Civil Procedure,1909
14
Order1 rule 7 of the Code of Civil Procedure,1909
15
Mulla : The Code of Civil Procedure, 18th Edition, p.1454
16
Order 1 rule 9 of the Code of Civil Procedure,1909
Suit in name of wrong plaintiff
Under Order 1 rule (10), it is provided that-
(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 Limitation Act,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 presupposes that the institution of the suit, that is, presentation of the plaint
was proper. Thus, where a suit was instituted in the name of A and B, and B had died three
days before the date of the presentation of the plaint, the suit cannot be taken to have been
instituted by B, as he was dead at the time. A could have instituted the suit alone, and if he
had done so it would be properly instituted and on his application B's legal representatives
could be added under this rule.17

17
Mulla : The Code of Civil Procedure, 18th Edition, p.1473