GNLU – Navinchandra Desai Law Foundation Chair Training Programme

“Application of the Code of Civil Procedure in Trial Advocacy and Execution”

“Parties & the Cause of Action”

Sanjeev Kumar Choudhary

Assistant Professor of Law
Gujarat National Law University
Gandhinagar, Gujarat
Wednesday, June 10, 2020
 Parties & Cause of Action
 Four Essential of a Suit:
i. Parties to the Suit
ii. Cause of Action
iii.Subject-matter:
iv.Relief
 Parties & the Cause of Action
 Parties to Suit:
• Plaintiff/defendant
• Necessary party /Proper Party
• Joinder/misjoinder/non-joinder
• Representative Suit
 Cause of action
• Transaction as distinguished from cause of action
• Joinder of cause of action
 Parties & Cause of Action
 Parties to the Suit: Order I
• At least two – a plaintiff and a defendant.
• Parties must – connection with cause of action.
• Cause of Action – Surviving/Non-survival or Struck-off - not a party, even
if erroneously appear on record.
• The Code provides for - necessary party and proper party - joinder, non-
joinder and misjoinder of parties in a suit.
 Parties & Cause of Action
 Joinder of plaintiffs: Rule 1
• Order I Rule 1 provides for joinder of plaintiffs.
• It states that all persons may be joined in a suit as plaintiffs if the following
two conditions are satisfied:
a) the right to relief alleged to exist in each plaintiff arises out of the same
act or transaction; and
b) the case is of such a character that, if such person brought separate
suits, any common question of law or fact would arise.
 Parties & Cause of Action
 Joinder of plaintiffs: Rule 1
• Illustration: A enters into an agreement jointly with B and C to sell 100 tins
of oil. A thereafter refuses to deliver the goods. Here both, B & C, have
each of them a right to recover damage from A. The said right arises out of
the same transaction, namely, the breach of the Contract, and a common
question of law and fact would also arise. B & C, therefore, may file a suit
jointly as plaintiffs against A for damage.
• A agrees to sell and deliver 100 tins of oil to B at a particular rate on 1st
January 2020. He also agrees to sell and deliver a like quantity of oil on the
same day at the same price to C. B and C cannot join as plaintiffs in one suit
against A as the transaction are different.
 Parties & Cause of Action
 Joinder of defendants: Rule 3
• Order I 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:
a) the right to relief alleged to exist against them arises out of the same act
or transaction; and
b) the case is of such a character that, if separate suits were brought
against such persons, any common question of law or fact would arise.
 Parties & Cause of Action
 Rule 6: 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 bill of
exchange, hundis and promissory notes.
 Rule 7: When plaintiff is in doubt from whom redress is to be sought
– where is in the doubt as to the person from whom he is entitled to obtain
redress, he may join two and more defendants in order that the question as
to which of the defendant is liable, and to what extent, may be determined
as between all parties.
 Parties & Cause of Action

 Rule 2 & 3-A: where it appears to the court that any joinder of plaintiffs or
defendants respectively may embarrass or delay the trial of the suit, it may
pass an order for separate Trial.
 Rule 4: the court may give judgment for one or more of the plaintiffs as
may be found entitled to relief against one or more of the defendants as
may be found liable.
 Parties & Cause of Action
 Necessary Parties & Proper Parties:
• There is an essential distinction between a necessary party and a proper party to a
suit.
• A necessary party is one whose presence is indispensable to the constitution of the
suit, against whom the relief is sought and without whom no effective order can be
passed.
• A proper party is one in whose absence an effective order can be passed, but
whose presence is necessary for a complete and final decision on the question
involved in the proceeding.
• In other words, while in absence of a proper party a decree can be passed so far as
it relates to the parties before the court. However, his presence enables the court to
adjudicate more ‘effectively’ and ‘completely’.
 Parties & Cause of Action
 Necessary Parties & Proper Parties:
• So, two points are very important for determining whether a person is a necessary party to
a suit or not. These are:
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.
• Illustrations:
i. Partition suit – all sharers are necessary parties.
ii. Suit for a declaration to set aside the public-auction – a purchaser to the property.
iii. Action against selection and appointment by the Authority – candidates who are
selected and appointed, are directly affected, therefore necessary parties.
 Parties & Cause of Action
 Necessary Parties & Proper Parties:
• On the other hand:
i. Suit for possession by landlord – a subtenant is only a proper party.
ii. Suit for partition by sons against their father – grandsons only a proper parties.
iii. Land acquisition proceedings – the local authority for whose benefit land is sought to
be acquired by Government is a proper party.
iv. Complaint against the seniority list prepared by the employer – if no relief is sought
against a particular individual shown as senior to the petitioner are just proper parties.
But, if relief is claimed against a specific person, he will become a necessary party.
• It may be noted here that when several people are interested in a suit, it is not necessary
that all of them must join personally, a provision for their representation by one or more is
in the Code. (Representative Suit: O. I R.8).
 Parties & Cause of Action
 Non-joinder or misjoinder of parties: Rule 9
• Where a person, who is either a necessary or proper party to a suit, has not been joined as
a party to the suit, it is a case of non-joinder.
• Conversely, if two or more persons are joined as plaintiff or defendants in one suit in
contravention of O I : R-1 or R-3 respectively and they are neither necessary or a proper
parties, it is a case of misjoinder of parties.
• Rule 9: 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.
Provided, that nothing in this rule shall apply to the non-joinder of necessary party.
 Parties & Cause of Action
 Non-joinder or misjoinder of parties: Rule 9
• Thus, the general rule that a suit can not be dismissed only on the ground of non-joinder
or misjoinder of the parties, nor a decree passed by a competent court on merits will be
set aside on this ground, does not apply in a case of non-joinder of a necessary party.
• So, a person who is likely to be affected by a decree is not joined as a party in the suit or
appeal, the suit or appeal is liable to be dismissed on that ground alone.
• However, the Supreme Court in B Prabhakar Rao v State of AP [1985 Supp SCC 432],
where all affected person had not been joined as parties to the petition, the SC took the
view that interest of those who were not joined as parties were identical with those who
were presented before the court and were sufficiently and well represented and, therefore,
the petition is not liable to be dismissed on that ground.
 Parties & Cause of Action
 Non-joinder or misjoinder of parties: Rule 9
• Similarly, no decree or order under S. 47 (question to be determined by the court executing
decree) of the Code can be reversed or substantially varied in appeal, inter alia, 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 parties are not necessary parties.
• Section 99: No decree shall be reversed or modified for error or irregularity not affecting
merits or jurisdiction – no decree shall be reversed or substantially varied, nor shall any
case be remanded, in appeal on account of any misjoinder or non-joinder of parties or
cause 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.
Provided that nothing in this section shall apply to the non-joinder of necessary party.
• Section 99-A: No order under S 47 to be reversed or modified unless decision of the case
prejudicially affected.
 Parties & Cause of Action
 Objection as to non-joinder or misjoinder: Rule 13
• O I R 13: All objections on the ground of non-joinder or misjoinder of parties shall be
taken at the earliest 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 objection as to the misjoinder or non-joinder can not be taken for the first time in
appeal or revision.
• Under O I R 9 of the code, while non-joinder of a proper party is not fatal to the suit,
non-joinder of a necessary party does prove fatal of the suit, if the plaint is not amended
to implead a necessary parties.
• So, if the objection of non-joinder is taken by the defendant at the earliest opportunity
and the plaintiff declines to add the necessary party, he cannot subsequently be allowed in
appeal to rectify the error by applying for amendment.
 Parties & Cause of Action
 Striking out, adding or substituting parties: Rule 10
• O I R 10: Suit in the name of wrong plaintiff –
i. R 10 (1): Adding or substituting plaintiffs: 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 bonafide 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
think fit.
Illustration:
(i) C, the agent of A, under a bonafide mistake files a suit against B in his own name. The
court can substitute the name of principal A for that of the original plaintiff C.
 Parties & Cause of Action
 Striking out, adding or substituting parties: Rule 10
Illustration: (ii) A joint Hindu family firm files a suit under a bonafide mistake in the name
of the firm although the provision of Order 30 relating to the filing of suits by firms do not
apply to such a firm. The court may allow substitution of the names of the members of the
Hindu joint family firm as plaintiff.
(iii) A, claiming a title under the gift deed, files a suit for possession of a house against B
under a bona fide mistake that the house was gifted to him by the said deed. When it was
found that the deed did not pertain to that house, the real owner could be substituted.
(iv) A sues B for the possession of house. B contends that since A has transferred the house
to C, he has no title to sue and the suit is therefore, not maintainable. A maintained his right
contending that no transfer is made, but the contention was found false. Thereupon, A
applies to add C as co-plaintiff. Application rejected, since its not a bona fide mistake.
 Parties & Cause of Action
 Striking out, adding or substituting parties: Rule 10
• As provided, such amendment may be allowed by the court at any stage of the suit or even
at the appellate stage upon such terms and conditions as court think fit. But,
• Rule 3 – makes it very clear that no person can be added plaintiff without his consent.
• Rule 2: Striking out or adding parties – this rule empowered the court to add any person as
a party to the suit on either of the two grounds:
i. Such person ought to have been joined as a plaintiff or a defendant, and is no so
joined; or
ii. Without his presence, the question involved in the suit cannot be completely decided.
• This provisions confers a wide discretion to the court to meet with every case of defect of
parties and is not affected by the inaction of the plaintiff to bring the necessary parties on
record. Addition of parties is a judicial discretion which is, of course, required to be
exercised judiciously.
 Parties & Cause of Action
 Power and duties of the court under O I, R 10(2): The court have been conferred wide
power under the provision which can be exercised either on application or suo motu, however,
courts need to keep the below mentioned consideration in mind while exercising these powers;
i. The plaintiff is dominus litis – he is the best judge of his interest. It is, therefore, for him to
choose his opponent from whom he claims relief and, normally, the court should not
compel him to fight against a person whom he does not want to fight and from whom he
claims no relief; and
ii. If the court is satisfied that the presence of a particular person is necessary to effectively
and completely adjudicate all the disputes between the parties, irrespective of the wishes
of the plaintiff, the court may exercise the power and join a person.
• But, if a special statute makes a person a necessary party to the proceedings, and also provides
that non-joinder thereof will result in dismissal of the petition, the court can not use the
curative powers of O I, R 10 as to avoid consequences of non-joinder of such party.
 Parties & Cause of Action
 Ramesh Hirachand v Municipal Corp. of Greater Bombay (1992) 2 SCC 524: The
plaintiff was a dealer on the land held by the HPC (lessee) and was in possession of a service
station. The Municipal Corporation issued a notice to the plaintiff for demolition of a certain
construction alleging that it was unauthorized.
The plaintiff filed a suit for permanent injunction against the Municipal Corporation. HPC
applied for being impleaded as a party defendant on the ground that it had material to show
that the structure was unauthorized. The prayer granted by the court.
Plaintiff approached SC in appeal. SC allowed the appeal and set-aside the order holding that
the HPC was neither a necessary party nor a proper party.
The question which was in dispute before the court was that whether the construction made by
the plaintiff was in violation of the Municipal Corp. norms or not; not whether it is in
accordance with the terms of the agreement between HPC and the plaintiff.
 Parties & Cause of Action
 Razia Begum v Sahebzadi Anwar Begum, AIR 1958 SC 886: A sought a declaration that
she was the legally-wedded wife of B. C claimed being another married wife of B and sought
to be added as a party defendant.
The prayer was granted. Since, the declaration sought for concerned the status of marriage and
legitimacy of children and would effect the parties for generation to come.
Thus the test is not whether the plaintiff agrees or objects to the addition of the party to the
suit, but whether presence of such party is required for full and complete adjudication of the
suit.
The Supreme Court laid down the principles regarding power of the court to add the parties
under O I, R 10(2) in this case.
 Parties & Cause of Action
 Razia Begum v Sahebzadi Anwar Begum, AIR 1958 SC 886:
• Principles:
i. That the question of addition of parties under rule 10 of Order I of the Code is
generally not one of the initial jurisdiction of the court, but of a judicial discretion which
has to be exercised in view of all the fact and circumstances of a particular case.
ii. That in a suit relating to property, in order that a person may be added as a party, he
should have a direct interest as distinguished from a commercial interest in the subject-
matter of the litigation.
iii. Where the subject-matter of a litigation is a declaration as regards status or legal
character, the rule of present or direct interest may be relaxed in a suitable case where
court is of the opinion that by adding that party, it would be in a better position
effectually and completely to adjudicate upon the controversy. And,
 Parties & Cause of Action
 Razia Begum v Sahebzadi Anwar Begum, AIR 1958 SC 886:
• Principles:
iv. The case contemplated in the last proposition have to be determined in accordance with
the statutory provisions of Section 42 and 43 of the Specific Relief Act, 1963.
• Effect of Addition of Parties: Where any person is added as defendants in the suit, as
regards him, the suit shall be deemed to have been instituted from the date he has joined
as party. Where the defendant is added, the plaint shall be amended and the amended
copies of the summons and the plaint must be served on the new defendant.
• Transposition of parties: Since the primary object of Order I Rule 10 of the Code is to
avoid multiplicity of providing, there is no reason why the doctrine of addition or striking
out parties does not apply to transferring the parties from one side to the other side. A
court can order transposition of parties either on application or suo mottu in appropriate
case.
 Parties & Cause of Action
 Representative Suit
• Definition: A representative suit is a suit filed by or against one or more persons
on behalf of themselves and others having the same interest in the suit.
• O I, R 8: One person may sue or defend on behalf of all in same interest.
• O I, R 8(1): (1) Where there are numerous persons having the same interest in one
suit,—
(a) one or more of such persons may, with the permission of the Court, sue or
be sued, or may defend such suit, on behalf of, or for the benefit of, all
persons so interested;
(b) the Court may direct that one or more of such persons may sue or be sued, or
may defend such suit, on behalf of, or for the benefit of, all persons so
interested.
 Parties & Cause of Action
 Representative Suit
• Conditions:
i. Numerous Parties
ii. Same Interst
iii. Leave of the Court
iv. Notice to the Parties
 Parties & Cause of Action
 Representative Suit
• Conditions:
i. Numerous Parties
ii. Same Interst
iii. Leave of the Court
iv. Notice to the Parties
• Title: A, B, on behalf of himself and
Others ….Plaintiff
C&D …..Defendant
 Parties & Cause of Action
 Representative Suit:
• Same Interest: TN Housing Board v TN Ganapathy AIR 1990 SC 642
• Permission by court: Sub-Rule 1 (b)
• Notice: Sub-Rule 2
• Addition & Substitution of parties: Sub-Rule 3
• Effect of Non-compliance: Not binding the person represented/but binding
person joined as party.
• Withdrawal & Compromise: SR 4 / O 23 R 1(3) / O 23 R 3-A
 Parties & Cause of Action
 Representative Suit:
• Conduct of Suit: SR 5 / R 8-A / R 11 / R 12.
• Decree: Binding on everyone represented.
• Res Judicata: Section 11 Explanation VI
• Abatement: Shall not abet by death of the representative.
• Costs: Parties on record – liable to pay; in exceptional circumstances, parties not on
record (unrepresented) may be directed to pay.
• Execution: Like any other normal decree.
 Parties & Cause of Action
 Cause of Action:
• A bundle of essential facts, which is necessary for plaintiff to prove before he can
succeed.
• Transaction as distinguished from Cause of Action: One act and transaction may
give rise to many cause of action. A separate suit may be brought for each cause of
action.
• However, one can not split cause of action and bring two or more suit with respect
to same cause of action (O II R 2).
 Parties & Cause of Action
 Cause of Action:
• Inclusion of Whole Claim: O 2 R 1-2
• Splitting of Claim: O 2, R 2
• Plea of O 2 R 2 highly technical/deprive party legitimate right otherwise available.
• Should not be lightly upheld/must be raised at earliest opportunity – cannot be
raised for the first time in appeal or revision (S 99).
• Test: Three questions:
i. Cause of action previous suit – subsequent suit – identical?
ii. Relief claimed in subsequent – could have been given in previous?
iii.Plaintiff omitted – to sue for a relief on the cause of action – disclosed?
 Parties & Cause of Action
 Cause of Action:
• Applicable only to suit – not to appeals, execution, arbitration, petition under 226
etc.
• Joinder of claims: R 4-5
• Joinder of cause of action: R 3 /6
• Objection as misjoinder & Non Joinder – R 7