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INSTITUTION OF SUIT-SECTION 26

INTRODUCTION: (ORDER 4, RULE 1 & 2) SECTION 26 of the Civil Procedure Code says that every suit must be instituted by presentation of a plaint or in other prescribed manner. In every plaint, the facts must be proved by affidavits. Plaint is a private memorial submitted to court in writing in which the person presents his cause of action. Only the person who has got cause of action or his authorized representative can institute a suit.1 Suit must always be instituted by the presentation of the plaint only, and hence any civil proceeding commenced by means of an application or otherwise does not become a suit. As per Order 4, Rule 1, the plaint must be submitted in duplicate to the court. Further every plaint must comply with the rules contained in Order 6 and 7.The plaint must show in what capacity the plaintiff sues the defendant. While submitting the plaint, the Court fee for the service of the plaint along with the summons must be paid. As per Rule 2 of Order 4, the particulars of every suit must be entered in the court register called Register of civil suits. The entries are serially numbered in every year according to their order of admission of plaints.2 PARTIES TO SUITS- (ORDER 1, RULE 1 TO 13) For institution of a suit, there must be two parties, a subject in dispute, cause of action and demand of relief. A suit is instituted by the presentation of a plaint to the court. The plaint should set out the name of the plaintiff,(if there are more than one plaintiff, the names of every plaintiff) and the name of the defendant(and if there are more than one defendant, the names of every defendant)

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Assan v. Pathumma Ram Gopal v. Ram Sarup

i. JOINDER OF PLAINTIFFS: RULE 1 Under the following conditions, all the persons may be joined as plaintiffs:3 1. where the right to relief exists in each plaintiff whether jointly, severally or in the alternative. 2. The right to relief arises out of the same act or transaction or series of acts and transactions. The persons who may be represented in a suit of this nature need not have the same cause of action. 3. If such persons brought separate suits any question of law or fact may arise. However if the jointer of plaintiffs may cause delay of the suit, then it may not be joined in the same suit. Illustration. 1. An altercation takes place between A on the one hand and B and C on the other. A assaults B and C simultaneously. B and C may join as plaintiffs in one suit for damages against A for the tortuous act since the above conditions are fulfilled. In PRAMADA NATH V. RAMANI KANTA, the court held that one co-owner can sue for the entire rent, making his co sharers as co defendants who refuse to join in the suit as plaintiffs. i. JOINDER OF DEFENDANTS: RULE 3 In the following cases, several persons may be joined as Defendants: 1. If any right to relief exists against them whether jointly or severally or in the alternative. 2. The right to relief arises out of the same act or transaction. 3. If separate suits are brought against such persons, any common question of law and fact would arise. 4. If the joinder of the defendants would delay the trial of the suit, then the court may order separate trial of the suit, then the court may order separate trials. All the defendants sued jointly need not be interested to all the reliefs claimed in any suit. 5. Act including parties to bills of exchange, Hundies, Promissory notes, may be joined as defendants.
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Shyam Behari Mal vs Maha Prasad And Ors

6. If the plaintiff is doubtful as to from whom he can redress, then he can join them as defendants. Eg: A libel appeared against the plaintiff in a newspaper. Here the plaintiff shall include the proprietor, the editor and the publisher as defendants as they are jointly and severally liable for the publication. The Owner of land is entitled to file one suit against all persons who have trespassed on it as he has the right to recover the plot whole and entire and not in bits and fragments.4 i) NECESSARY AND PROPER PARTIES: A necessary party is one in whose absence no order can be made effectively; a proper party is one in whose absence an order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceedings. Two test have been laid down for determining the question whether a particular party is a necessary party to a proceeding.5 i) There must be a right to some relief against such party in respect of the matter involved in the proceeding in question; and ii) It should not be possible to pass an effective decree in absence of such a party.

Thus in a suit for partition, all sharers are necessary parties. The grandsons are proper parties to a suit for partition by sons against their father. In land acquisition case, the beneficiary is a proper party whereas the Government and the claimant are necessary parties. i) NON-JOINDER OF PARTIES: RULE 9

A non-joinder occurs when a party to the dispute is not joined in a suit. The suit will fail if a party who is necessary to the dispute is not joined in a suit. The persons who are going to be affected by the pleadings or outcome of the suit has to be joined in the suit. Order 1 Rule 7 of
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AIR 1959 Raj 17


Benares Bank Ltd v. Bhagwan Das

CPC permits a plaintiff to join two or more defendants in case he is doubtful as to who should be proceeded against to get redress. Non-inclusion of a party whose presence is necessary for adjudicating the dispute is called Non-Joinder. So whenever a plaint is filed to move a suit, the plaintiff must take all earnest efforts to add such parties who are necessary to the suit. This will avoid unnecessary delays in the suit. But In B.P.RAO V. STATE OF A.P6, where all the affected persons had not been joined as parties to the parties to the petition, and some of them only were joined, the Supreme Court took the view that the interest of the persons who were not joined as parties were identical with those persons who were before the court and were sufficiently and well represented and therefore, the petition was not liable to be dismissed on that ground.

Similarly, no decree or order under section 47 of the code can be reversed or substantially varied in appeal, interalia on account of any misjoinder or non joinder of parties, not affecting the merits of the case or the jurisdiction of the court, provided that such party is not a necessary party.7

i)

MIS-JOINDER OF PARTIES

Adding or the presence of a party who is unwanted or unnecessary to the proceedings is called Mis-Joinder of Party. However no suit shall be defeated by reason of mis-joinder of a party.8 This is dealt within Order 1 Rule 9 of CPC.

Order 1 Rule 13 of CPC says that any objections as to non-joinder or misjoinder of parties shall be taken at the earliest possible opportunity and in all cases before issues are settled. If the objections are not raised as stated above, it shall be deemed to have been waived.

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AIR 1986 SC 210 lakshmishankar v. Asharam(1993) 3SCC 49 8 Jagan nath v. Jaswant SinghAIR 1954 SC 210

ii)

STRIKING OUT, ADDING OR SUBSTITUTING PARTIES: RULE 10

Adding or substituting plaintiffs; a) If after filing suit, the plaintiff discovers that he cannot get the relief he seeks without joining some other persons also as plaintiff or where it is found that some other person and not the original plaintiff is entitled for relief, as prayed for an application for addition or substitution of the plaintiff can be made. b) The object underlying this provision is to save honest plaintiffs, believing bona fide in the maintainability of their claims being non suited on a mere technical ground9. To bring a case within this subrule,two conditions must be satisfied;10 i) The suit must been filed in the name of a wrong person as plaintiff by a bonafide mistake; ii) The substitution or addition of the plaintiff is necessary for the determination of the real matter in dispute.

ILLUSTRATION: C agent of A, under a bonafide mistake files a suit against B in his own name. The court can substitute the name of the principal A for that of the original plaintiff C. Such amendment may be allowed at any stage of the suit or even at the appellate stage and upon such terms and conditions as it think just.11No person can be added as plaintiff without his consent.12

STRIKING OUT OR ADDING PARTIES: Sub rule (2) of Rule 10 empowers that court to add any person as a party to the suit on either ground: 1. Such person ought to have been joined as a plaintiff or a defendant and is not so joined; 2. Without his presence, the question involved in the suit cannot be completely decided.13

Koman v. Moolacheri AIR 1935 Mad 95 R 10(1);Razia begum v. Anwar Begum

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Ramesh v. Municipal corp. of Bombay 1992 2 SCC524 R 10(3) 13 Ramesh v. Municipal corp. of Bombay(supra)

EFFECT : Where any person is added as defendant in the suit, as regards him, the suit shall be deemed to have been instituted from the date he is joined as a party.14 Where a defendant is added, the plaint shall be amended and amended copies of the summon and the plaint must be served on the new defendant.15

REPRESENTATIVE SUIT: (RULE 8 AND 8A OF ORDER 1)

When some persons represents another persons interested in filing a suit, it is called representative suit. When in a dispute several persons are interested, it can be agitated in a court of law by way of representative suit. This is dealt with under Order 1 Rule 8 of CPC. This rule is an exception to the general rule that all persons interested should be party to the suit. As per Order 1 Rule 8 of CPC, where there are numerous persons having same interest in one suit, one or more of such persons may sue or be sued on behalf of all persons interested with the permission of the court. Essential Conditions16 There are certain things which must be needed for a representative suit. They are as follows: 1. There must be numerous number of parties 2. The interest of all parties must be the same 3. The court should give permission 4. Notice must be issued to proposed parties

The provision laid down in the law will save the precious time of the Court and cut down expense. The matter can be determined in a single trial. It may be clarified that the numerous persons may not have same cause of action or same transactions. What is required is the same interest between parties to the matter. There are some other things also which can be noted. The further proceedings of representative suit is dealt with in Order 1 Rule 8 sub rules 2 to 6 of CPC. The Court shall give notice at the
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RULE 10 (5) Rule 10(4)


Goundar v. Goundar (supra)

expense of the plaintiff to all interested persons. Any person who has an interest in the suit and on whose behalf or benefit the suit is instituted or defended may apply to make himself as a party to such suit. Any abandonment of claim in such suit, withdrawal and compromise has to be made known to the parties. The decree passed in a representative suit shall be binding on all persons.

COMPROMISE IN REPRESENTATIVE SUIT: Compromise between the defendant and the plaintiff is allowed in a Representative suit only with the permission of the Court. APPEAL AGAINST REPRESENTATIVE SUITS: If a person is under Representative Suit without his consent, then he can file an appeal against the decree of the court in the Representative Suit. The object of the representative suit is to save expenses and time and to avoid multiplicity of suits. In T.N. Housing Board v. Ganapathy,17 residential buildings were allotted by the Housing Board to the applicants who belong to low income group. After settlement of price, excess demand was made by the board. The allottees challenged the demand by filing a suit in a representative capacity. It was contended that such a suit in a representative capacity was not maintainable as separate demand notice were issued against the allottees , giving rise to separate causes of action, Rejecting the contention the Supreme Court held that all of them had the same interest and therefore the suit was maintainable. Kalyan Singh v. Chhoti18, For a representative suit , the courts permission under Order 1, Rule 8 CPC is mandatory. iii) JOINDER OF CAUSES OF ACTION:

1. Order 2, Rule 3 of the Civil Procedure Code relates to joinder of causes of action. i) A plaintiff may unite in the same suit several causes of action against the same defendant/the same defendant jointly.

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(1990) 1 Scc 608 AIR 1990 SC 396

ii)

Plaintiffs having causes of action in which they are jointly interested against the same defendant/the same defendants jointly may unite in the same suit such as jointly interested cause of action.

2. Order 2, Rule 4 No cause of action shall, unless with leave of the court, be joined with a suit for the recovery of immovable property. The Rule 3 of Order 2 deals with the joinder of cause of action. The expression cause of action means causes of action which are distinct upon the fact as stated in the plaint itself or as provided in the hearing.19 Facts alleged by the defendants are not the cause of action. A suit consists of parties namely plaintiff and defendant. The joinder of parties involves the joinder of causes of action. Rule 3 allows a plaintiff to unite in the same suit several causes of action against the same defendant and to order separate trials if necessary. iv) JOINDER OF CLAIMS: RULE 4 -5

Rule 4 and 5 provide for joinder of claims.Rule 4lays down that in a suit for the recovery of immovable property, a plaintiff is not entitled,without the leave of the court, to join any claim, excepta) Claims for mesne profits or arrears of rent in respect of the property claimed or any part thereof; b) Claims for damages for breach of any contract under which the property or any part thereof is held and c) Claims in which the relief sought is based on the same cause of action. However nothing in this rule shall prevent any party in a suit for foreclosure or redemption from asking to be put into possession of the mortgaged property. This rule deals with the joinder of claims. It declares that no claims other than those specified in three exceptions shall be joined without leave of the court with a suit for recovery of immovable property. The leave of the Court must be first obtained to join the claims with the claim for recovery of immovable property

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7 Bom.LR 925

except as prescribed in rule. No leave is necessary where the claims are joined in which the relief sought is based on the same cause of action. In case of a suit for possession of immovable property and mesne profits, a claim for damages for period subsequent to suit can be joined in a proper case.20 Rule 5 of the Order 2 provides that no claim by or against an executor, administrator or heir shall be joined such with claims by or against him. The object of the rule is to prevent an executor or administrator from inter mingling the assets of his testator with his own estates. A Hindu women can sue her husbands executors to recover certain ornaments forming part of her stridhana and her share in her husbands estate in the same suit.21 v) OBJECTION FOR MISJOINDER OF CAUSES OF ACTION: RULE 7

Rule 7 of order 2,provides the ground for objection on the ground of mis joinder of causes of action. When in a suit, two or more cause of actions are joined together which ought to have not been joined, the suit is bad for misjoinder of cause of action. Where five plaintiffs contract separately to sell cotton ,though to the same defendant and if they all join in one suit for damages for breach of the five contracts, it is misjoinder of plaintiffs and cause of action. A petition for divorce against the wife on the ground of adultery and a claim for damages against the adulterer cannot be combined. An objection as to mis joinder of causes of action should be taken at the earliest, if not taken in the Court of first instance, be deemed to be waived.22 Where an objection as to mis joinder is taken in the written statement but not pressed, it cannot be taken at the later stage.

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ILR (1946)C 411

20 IC 533

22 AIR1932Bom595
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AIR 1955 ALL 361