Misjoinder And Non Joinder Of Parties

The civil cases, start with the institution of the case by one party against the another party and
the competent court decides the rights and liabilities of the parties. Order 1 of the Code of Civil
Procedure, 1908 deals with the the parties to the suit and also contains provisions for addition,
deletion and substitution of parties, joinder, non-joinder and misjoinder of parties and objections
to misjoinder and non-joinder.
The question of joinder of parties may arise either as regards the plaintiffs or as regards the
defendants. An Act may be done by a single individual and may adversely affect another
individual. In that case, the question of joinder of parties does not arise at all. The question of
joinder of parties arises only when an Act is done by two or more persons or it affects to two or
more persons. [1] All persons may be joined in one suit as plaintiffs according the conditions
required under rule 1 of order 1. The conditions which are required to be fulfilled are that the
right to relief alleged to exist in each plaintiff arises out of the same act of transaction; and the
case is such of a character that, if such person brought separate suits, any common question of
law or fact would arise. On the other hand, a person can be joined as a defendant according to the
provisions of rule 3 of order 1. The conditions to be required to be satisfied in the case of
defendant are that the right to relief alleged to exist against them arises out of the same act of
transaction; and the case is of such a character that, if separate suits were brought against such
person, any common question of law or fact would arise.

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In Benares Bank Ltd. V. bhagwandas [2] , the full bench of the High Court of Allahbad laid down
two tests for determining the questions whether a particular party is necessary party to the
proceedings:
There must be right to some relief against such party in respect of the matter involved in the
proceedings in question; and
It should not be possible to pass an effective decree in the absence of such a party.

The above tests were described as true tests by Supreme Court in Deputy Commr., Hardoi V.
Rama Krishna. [3]
Rule 9 of order 1 lays down that no suit shall be defeated by reason of misjoinder or non-joinder
of parties. In such cases, the court may deal with the matter in controversy as regards the rights
and interests of the parties avtually before it. However, this rule does not apply to cases where
there is a non-joinder of necessary party.
If two or more persons are joined as plaintiffs or defendants in one suit in contravention of order
1, Rules 1 and 3 respectively and they are neither necessary nor proper parties, it is a case of
misjoinder of parties. On the other hand, where a person, who is necessary or proper party to a
suit has not been joined as a party to the suit, it is a case of non-joinder. The general rule is that a
suit cannot be dismissed only on the ground of non-joinder or misjoinder of parties.
There would be misjoinder of parties if person having a separate cause of action file a suit
jointly. [4] It would not be 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. [5] Where in a suit
there are two or more defendants and two or more cause of action, the suit will be bad for
misjoinder of of defendants and cause of action, if different cause of action are joined against
different defendants separately. Such a misjoinder is technically called multifariousness. [6]
As regards the non-joinder of parties, a distinction has been drawn between the non-joinder who
ought to have been joined as a party and the non-joinder of a person whose joinder is only a
matter of convenience or expediency. The court in various cases held that if the decree cannot be
effective without the absent parties, the suit is liable to be dismissed. [7] In a particular case,
where one of the mortgagees instituted the suit on the mortgagee, it was held that this rule did
not cure the defect, as the matter was not a matter of procedure. Thus, suit was held to be not
maintainable on the ground that an effective decree giving discharge to the mortgagors could not
be passed by reason of the non-joinder of some of the mortgagees. [8] In cases where the joinder
of a person as a party is only a matter of convenience the absent party may be added or the suit
may be tried without him. [9] The scope of this rule was elaborately discussed by Allahbad High
Court in Maqsood Ali v. Zahid Ali [10] that except where there is a legal bar to the
maintainability of a suit by reason, non-joinder of a party, or where in his absence, the decree
that may be passed might become infructuous or inexecutable, the court cannot dismiss a suit for
non-joinder of a person. When the question is such that it can be decided between the parties to
the suit, the court cannot decline to do so because the third parties might be interested thereon.
The plea of non-joinder must be raised at the earliest opportunity and if the objection as to nonjoinder as is not raised at an early stage, it is deemed to have been waived.
Section 99 of the Code of Civil Procedure provides that no decree shall be reversed or
substantially valid, nor shall any case be remanded, in appeal on account of any misjoinder or
non-joinder of parties or causes of action or any error, defect or irregularity in any proceedings in
the suit, not affecting the merits of the case or the jurisdiction of the court and, however, nothing
in this section shall apply to non-joinder of a necessary party. Where a relief is sought against a
party without impleading him as a party, the suit would be liable to be dismissed.

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In case of non-joinder of parties, Rule 9 provides against the dismissal of suit. The only course
open to the court under such circumstances is formally to call upon the plaintiff to make his
election and confine the suit to one set of defendants. In case of non-joinder of the necessary
party, an opportunity should be given to the plaintiff to add the necessary party.
A suit is not to be dismissed only on the ground of non-joinder or misjoinder of parties. The
Court may allow the necessary parties to be joined, in at a later stage. 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. In case of misjoinder or non-joinder of parties, Rule 9 provides against the
dismissal of the suit.

CHAPTER 1: MISJOINDER OF PARTIES AND ITS

EFFECT
The joinder of any person as a party to a suit contrary to the provisions of the code is called
misjoinder. Misjoinder may be misjoinder of plaintiffs; misjoinder of defendants and misjoinder
of cause of actions.
Misjoinder of Plaintiffs
Where two or more persons may have been joined as plaintiffs in one suit but the right to relief
alleged alleged to exist in each plaintiff does not arise out of the same act or transaction (or series
of acts or transaction) and if separate suits were brought by each plaintiff no common question of
fact or law would have been arisen, there is misjoinder of plaintiffs. [11] The objection on the
ground of misjoinder of the plaintiffs, should be taken at the earliest possible opportunity; if not,
it is be deemed to have been waived. [12]
Misjoinder of defendents
Likewise, where two or more persons have been joined as defendants in one suit but the right to
relief alleged to exist against each defendant does not arise out of the same act or transaction (or
series of acts or transactions) and if separate suits were brought against each defendant, no
common question of fact or law would have arisen, there is misjoinder of defendants. [13]
Misjoinder of cause of action

Misjoinder of causes of action may be coupled with the misjoinder of plaintiffs or misjoinder of
defendants. Thus, the subject may be considered under the following three headsMisjoinder of plaintiffs and cause of action
where in a suit there are two or more plaintiffs and two or more causes of action, the plaintiffs
should be jointly interested in all the causes of action. If the plaintiffs are not jointly interest in
all the cause of action, the case is one of misjoinder of plaintyiffs and cause of action. The
objection on the ground of misjoinder of plaintiffs and causes of action should be taken at the
earliest opportunity. [14]
Misjoinder of defendant and causes of action : Multifariousness
Where in a suit, there are two or more defendants and two or more cause of action, the suit will
be bad for misjoinder of defendants and causes of action, if different causes of action are joined
against different defendants separately. [15] Such a misjoinder is technically called
multifariousness. The objection on the ground of multifariousness should be taken at the earliest
opportunity.
In a suit for recovery of loan advanced on an overdraft account, the joinder of a claim against the
agent on the ground that he had acted in excess of his authority and against the managing
director on the ground that he had approved of it would render the action multifarious. [16]
In a case, where the plaintiff purchased the suit house in which two pesons were residing as
tenants separately and he brought a suit for eviction against both the defendant-tenents claiming
different relief against them. It was held that the suit was bad for multifariousness. [17]
Misjoinder of claims founded on several causes of actions
Order 2 of the code of Civil Procedure Code deals with the misjoinder of claims founded on
several claims. According to the rule, every suit must include the whole claim which the plaintiff
is entitled to make in respect of that cause of action.
The question whether or not there is misjoinder of parties has to be decided on the basis of the
averments made in the plaint and not reference either to the written statement or on the evidence
led by the parties.

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Rule 9 expressly and unequivocally declares that no suit is liable to be dismissed by reason of
misjoinder of parties. In other words, misjoinder of parties is not fatal to the suit. It is mere
irregularity covered by sections 99 and 99-A of the Code. Hence the various high courts, on the
question of misjoinder of parties held that no decree shall be reversed or substantially varied, nor
shall a case be remanded in appeal inter alia on account of misjoinder of parties, not affecting the
merits of the case or the jurisdiction of the court. [18] Where there is a misjoinder of parties, the
name of the plaintiff or the defendant who has been improperly joined may be struc out under r
10 and the case may be proceed with.
In patasibai V. Ratanlal, an application for the correction of misdescription of the defendant (in
the plaint) was allowed, the correction could not be incorporated in the plaint. But, 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 decree was valid.

CHAPTER 2: NON-JOINDER OF THE PARTIES AND ITS

EFFECT
When a person who is a necessary party to a suit has not be joined as a party to the suit, it is a
case of non-joinder. As regards the non-joinder of parties, a distinction has been drawn between
the non-joinder who ought to have been joined as a party and the non-joinder of a person whose
joinder is only a matter of convenience or expediency.
A suit is not to be dismissed only on the ground of non-joinder of parties. The court may allow
necessary parties to be joined, in at a later stage. 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.
According to the proviso of the Rule 9 of Order 1 nothing in the said rule applies to non-joinder
of a necessary party. A necessary party is that in whose absence the court cannot pass an effective
decree. If the decree cannot be effective without the absent party, the suit is liable to be
dismissed. However, where the joinder of a person is only a matter of convenience and he has
not be joined as a party, he may be added at any stage or the suit may be tried without
impleading him. The allowing of the suit depends on whether a party who has not been joined is
a necessary party or merely a proper party. If a necessary party is not joined, then, the suit is
liable to be dismissed. [19]
Section 99 of the Code of Civil Procedure provides that no decree shall be reversed or
substantially valid, nor shall any case be remanded, in appeal on account of any misjoinder or
non-joinder of parties or causes of action or any error, defect or irregularity in any proceedings in
the suit, not affecting the merits of the case or the jurisdiction of the court and, however, nothing
in this section shall apply to non-joinder of a necessary party. Where a relief is sought against a
party without impleading him as a party, the suit would be liable to be dismissed.
In case of non-joinder of parties, Rule 9 provides against the dismissal of suit. The only course
open to the court under such circumstances is formally to call upon the plaintiff to make his
election and confine the suit to one set of defendants. In case of non-joinder of the necessary

party, an opportunity should be given to the plaintiff to add the necessary party. The Calcutta
High Court in the case of suit for recovery of money against LIC, it held that all the heirs of the
claimant would be necessary parties to the suit and non-joinder of some of them would be
bad. [20]
Rule 1 of Order 1 is subject to local, or special law, statutory provisions as also to any special
form of procedure prescribed by any law. Thus, any special law provides that a certain person
must beimpleaded as a defendant although no relief is claimed against him, then failure to
implead him will be fatal to suit notwithstanding the provision of Order 1 rule 9. [21]

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Where a suit for possession was filed, and the defendant derived his title from the auctionpurchaser in liquidations proceedings of a company, but the plaintiff sued for declaration that the
auction proceedings and the subsequent conveyance by auction purchaser to defendant were void
in law under a certain Act, it was held by the Supreme Court in Vishnu v. Rajan Textile
Mills, [22] that the liquidator was a necessary party and in his absence the suit for declaration
must fail.
Rule 9 applies to a mortgage suit as well as to other suits. In a suit for redemption of mortgage
property where the daughters of the mortgagee who were necessary parties were not impleaded
and objection as to non-joinder was not raised at earliest opportunity, the suit annot be
maintained on account of non-joinder.
The Supreme Court held that a candidate who had withdrawn before contesting elections was not
a necessary party and so his non-joinder was not fatal to the maintainability of the election
petition and that therefore he could be impleaded as there was nothing in the Act which excluded
their application. [23]

CHAPTER 3: OBJECTIONS AS TO MISJOINDER AND

NON-JOINDER OF PARTIES
All objections on the ground of non-joinder or misjoinder of parties must be taken at the earliest
opportunity, otherwise they will be deemed to have been waived. But, if the objections as to nonjoinder of necessary party has been taken by the defendant at the earliest stage and the plaintiff
declines to add the necessary party, he cannot subsequently be allowed in appeal to rectify the
error by applying the amendment. [24]

As per Rule 13 of Order 1 of the Code of Civil Procedure, all objections on the ground of nonjoinder or mis-joinder of parties shall be taken at the earliest possible opportunity and, in all
cases where issues are settled, at or before such settlement, unless the ground of objection has
subsequently arisen, and any such objection not so taken shall be deemed to have been waived.
The Supreme Court in various cases held that an objection to non-joinder and misjoinder of
necessary party should be taken at the earliest opportunity before the settlement of issues. An
objection as to non-impleadment of a party, in a writ petition has to be taken at the stage of
second appeal. The Andhra Pradesh High Court held that an issue of non-joinder of a necessary
party can be raised in appelleate court. [25] An objection as to non-impleadment of a party, in a
writ petition has to be taken at the stage of counter-affidavit and not at the belated stage of
hearing.
An issue of non-joinder of a necessary party can be raised in appellate court. An objection as to
non-impleadment of a necessary party, which was not taken in the first appeal cannot be allowed
to be taken at the stage of second appeal. [26]
Objection as to misjoinder, when not raised in court of first instance is no ground for reversing a
decree when they do not affect the merits of the case. The plea cannot be raised for the first time
in the second appeal. When objection to want of parties is not raised by the defendant, it must be
deemed to have been waived. But, court can add one as a party if it thinks it necessary. Where a
necessary party is not impleaded, the objection even if not taken in the trial court, cannot be said
to be waived. It can be raised even in revision. [27]
The words unless the ground objection has subsequently arisen allows to object even after the
settlement of issues. In a partition suit, all coparceners must be joined as parties, even though
some of them may be born after the institution of the suit. In the same way, a woman who is a
party to a suit is married after the settlement of issues and the nature of the suit is such that the
husband is a necessary party, the plaintiff should make the husband a party and the defendant
may raise this objections even though it be after the settlement of issues.

CONCLUSION
As explained above, non-joinder or mis-joinder of parties is not fatal to the suit. Order 1, Rule 9
of the Code of Civil Procedure lays down that no suit shall defeated by reason of the misjoinder
or non-joinder of parties, and the court may in every suit deal with the matters of controversy so
far as the regards the rights and interests of the parties actually before it. The only exception
provided to this rule is furnished by the general rule that a court will refrain from passing a
decree which would be ineffective and infructuous. To sum up, in the case of non-joinder of
necessary parties the Court cannot pass an effective decree in their absence. In such a case, the
suit cannot proceed and is liable to be dismissed if the plaintiff on being provided with an
opportunity to amend the plaintiff refuses to do so. The two principals have been incorporated
under the Code of Civil Procedure rightly in order to provide justice and protect the rights of the
individuals.

BIBILIOGRAPHY
Primary Source
The Code of Civil Procedure, 1908
Secondary Sources
C.K. Takwani, Civil Procedure, (Eastern Book Company, Lucknow, 2003).
A.N.Saha, The Code of Civil Procedure, Vol 2 (Premier Publishing Co., Allahabad, 2004).
M.P.Tandon, The Code of Civil Procedure, (Allahabad Law agency, Faridabad, 2002).
R.C. Khera, The Code of Civil Procedure, Vol III (N.M. Tripathi Private Limited, Bombay,
1997).
Paul, Salil and Srivastava, Anupam, Mulla: The Code of Civil Procedure, 16thEd (Buttersworths:
New Delhi, 2001).
Myneni, S.R., Code of Civil Procedure & Limitation Act, Asia Law House Hyderabad, 2004,
P.48
Thakkar C.K., Code of Civil Procedure, Eastern Book Company, Lucknow,2004
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