CIVIL

Non-joinder and mis-joinder of parties and causes of action

Non-joinder and mis-joinder of parties and causes of action—Attention is drawn to the provisions of law contained in Orders I and II of the Civil Procedure Code relating to non-joinder of parties and mis-joinder of causes of action and parties and as to representative suits—

(i) Joinder of parties—Order I, Rules 1 and 3 provide in what case several plaintiffs or defendants may be joined in one suit.

(ii) Representative Suits—Order I, Rule 8 provides that when there are numerous persons having the same interest in one suit, one or more of such persons may sue or defend on behalf of all with the permission of the Court.

The abandonment, withdrawal, compromise or agreement or satisfaction of any suit either in part or in whole is prohibited until all the persons interested in the suit have been given a notice at the expenses of the plaintiff.

The Court can substitute any person having interest in the suit if the person suing in representatives capacity is found acting mala fide and does not proceed with due deligence in the suit or defence as the case may be. The decree passed in such a suit shall be binding on all such persons for whose benefit it was instituted or defended. It is not necessary to establish that the persons suing or being sued or defended have the same cause of action in the suit.

(iii) Objections as to non-joinder or mis-joinder—Order I, Rule 9 lays down that no suit shall be defeated by reason of mis-joinder of parties and Order I, Rule 13 and Order II, Rule 7 lay down that objections as to non-joinder or mis-joinder of parties or causes of action, etc., should be made at the earliest stage of the case.

(iv) Joinder of cause of action—Order II, Rules 3-5 provide in what cases several causes of action may be joinder in one suit. When an objection duly taken with regard to mis-joinder of causes of action is allowed by the Court the plaintiff should be permitted to select the cause of action with which he will proceed and the Court should grant him time to amend the plaint by striking out the remaining causes of action. The Court should also give the plaintiff time within which to submit amended plaints for the remaining causes of action and for making up the Court-fee that may be necessary. (Order II, Rule 8, Civil Procedure Code.)

(v) Separate trial—Order I, Rules 2 and 3A and Order II, Rule 6 provide for power of the Court to order separate trials of the joinder of several plaintiffs or defendants or several causes of action ―in one suit will embarrass or delay the trial‖ or is otherwise inconvenient.

(vi) Striking out and adding parting—Order I, Rule 10 gives power to the Court to strike out unnecessary parties and add necessary parties.

(vii) Power of Court to take opinion on any question of law—Rule 8A of Order I, empowers the Court to permit any persons or body of persons to take part in proceedings on any question of law which is directly and substantially in issue in the suit and to allow him to present his opinion.

Necessary parties—Suits for inheritance, partition or declaration of right in order to effect a partition, contribution, redemption, foreclosure, administration of property, dissolution and winding up of a partnership, and the like, cannot be properly disposed of unless all persons interested in the matter are before the Court. Therefore, in cases of this description, if it appears that any necessary parties have not been joined the plaintiff should be ordered to join them.


Categories: CIVIL

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