Parties to the suit

Order I and Order II of

CPC
By Shrimee Srivastava
6. Miscellaneous Provisions (Order 1)Order 1 contains other miscellaneous
provisions as regards parties to suits, which maybe summarized as under:

a) while trying a suit, the Court may allow a person (or a body of persons) to
present his (or its) opinion, and take such part in the suit proceedings as the
Court may specify, if it is satisfied that such a person (or body of persons) is
interested in any question of law which is directly and substantially in issue in
the suit and that it is necessary to do so in the public interest (R. 8A).
b) if a suit is instituted in the name of a wrong person as the Plaintiff, or
if it is doubtful if the suit is instituted in the name of the right Plaintiff,
the Court may allow any other person to be substituted or added as the
Plaintiff, if it is shown that there was a bona fide mistake.[R. 10(1))

c) at any stage of the suit, the Court may order that the name of any
party who is improperly joined be struck out, and the name of any
person who ought to have been joined be added, to the suit. [R. 10(2)]
d) if a Defendant is added unless the Court otherwise directs, the Plaint
must be amended, and the amended copy of the Plaint and Summons
must be served on the new Defendant, and if the Court deems fit, also on
the original Defendant. [R. 10(4)]

In this connection, it should be remembered that the Limitation Act

provides that when, after the institution of a suit, a party is added as a
plaintiff or a defendant, the date of addition is to be considered as
regards that party as the date of institution of the suit.

It has been held that where necessary parties are not joined within the
period of limitation, the suit must be.
e) the Court is also empowered to request any pleader to address it as to any
interest which is likely to be affected by its decision on any matter in issue in
any suit or represented by any pleader proceedings if the party having the
interest which is likely to be so affected is not) the Court may give the conduct
of a suit to such person as it may deem proper. (R.11)

where there are more Plaintiffs than one, any one or more of them may be
authorized in writing by the others to appear, plead or act for such other parties
in any proceeding. The same rule applies in a case where there are more
Defendants than one. (R.12)
SUBJECT MATTER IN DISPUTE

The subject matter is the second essential element of a suit. Subject matter is
the right property claimed in a suit. The Court adjudicates upon the rights of
the parties with regard to the subject matter in dispute

CAUSE OF ACTION It is the third essential element of a suit. Cause of action

is a fact or combination of facts which gives rise to right to sue. [Section 20
and Order 7, Rule 1 (e), CPC, 1908]Section 17 of the Court Fees Act, 1870
defines the cause of action as follows:
"Cause of action includes the right which the plaintiff asserts and the
infringement of that right by the defendant. Where the plaintiff's right is
infringed by more persons than one and by different acts done separately by
each of them, the plaintiff has a separate cause of action against each of these
persons.
V. RELIEF CLAIMED

Every suit shall be instituted by presenting a plaint to Court or any officer

appointed in this behalf. Every plaint shall comply with Rules contained in Orders
6 and 7 as far as they are applicable. The plaint shall contain the following
particulars:

a) Name of the Court in which suit is brought.

b) Name, description and place of residence of the plaintiff.

c) Name, description and place of residence of the defendant, so far as they can
be ascertained.
d) Facts constituting cause of action and when it arose.)

e) Valuation of subject-matter for the purposes of jurisdiction and Court fees)

f) Reliefs claimed.

Every plaint shall state specifically the reliefs which the plaintiff claims.

In suit is for recovery of money, precise amount must be stated unless suit
itself is for accounts or mesne profits or debts which cannot be estimated. In
such cases, approximate amount must be mentioned. Reliefs can be claimed
simultaneously or in the alternative.
In fact, it is convenient to file a suit for specific performance and in the
alternative, for damages. Where the subject-matter of suit is an immovable
property, there must be proper description of such property sufficient to
identify it and whenever applicable, its boundaries and number in revenue
records must be provided.

Ubi jus ibi remedium, that is to say, Where there is a right, there is a remedy.
The word just has reference to the cause of action; the word remedium to
relief. The nature of the relief or remedy to which a plaintiff is entitled
depends upon the nature of his rights or his cause of action.
Reliefs in suits on contracts

In suits on contracts, there are three remedies open to the party

aggrieved according to the nature of the contract, namely:

a) Specific performance;

b) Damages; and

c) Injunction
As a general rule, it may be stated that where there is a breach of a
contract to transfer immovable property, the plaintiff is entitled to
specific performance of the contract, but where the breach is of a
contract to transfer movable property, the plaintiff is not entitled to
specific performance, but to damages only.

Thus, if I agree to sell you my house for Rs. 400000/- and Ifail to
transfer my house to you, you are entitled to a decree directing me to
convey the house toyou on your paying the purchase money to me.
But if I agree to sell you 100 maunds of sugar at the rate of Rs. 3 per maund
on a certain day and fail to deliver similar quality in the market, and if you
have to pay more for it, say, at the rate of Rs. 4 per maund, you may claim
from me as damages Rs. 100, being the difference between the contract price
and the market price. Injunction also is one of the remedies in the case of
certain contracts. Thus, if I let you may land on condition that you should not
dig sand or gravel there out, and you threaten to do so, I am entitled to sue you
for an injunction to restrain you from digging in violation of your contract.
Reliefs in suits for torts

Where a tort has been committed, the remedy open to the party
aggrieved is damages. Where a tort is about to be committed the
appropriate remedy is injunction. Thus, if you are about to publish
statements defamatory of me, I may sue you for an injunction to restrain
you from publishing them. But if you have already published them, I
may sue you for damages.
FRAME OF SUIT ORDER 2

ORDER 2 As far as practicable, every suit should be framed so as to

afford a ground for a final decision on the subjects in dispute, and to
prevent further litigation on such subjects. (0.2, r.1)

The object of this rule is that all matters in dispute between the parties
should be disposed of in the same suit. The penalty for non-compliance
with the rule is provided partly by Section 11,Explanation IV, and party
by 0.2, r.2.
Explanation IV of Section 11 provides that any matter which might and ought to
have been made a ground of attack or of defence in a former suit will be deemed to
have been a matter directly and substantially- in issue in such suit, and will not be
allowed to be re-opened in a subsequent suit between the same parties, although it
was not actually adjudicated upon in the former suit. O.2, r.2 provides that every
suit should include the whole of the claim which the plaintiff is entitled to make in
respect of the same cause of action, and that if he omits to include any portion of
such claim, he shall not be entitled to sue again in respect of it.

R.2 (of 0.2) lays down that every suit must include the whole claim which the
plaintiff is entitled to make in respect of that cause of action.
It is of course, open to him to relinquish any portion of his claim so as to bring
the suit within the jurisdiction of a particular Court. However when he does
so, he cannot afterwards file a suit in respect of the portion of the claim so
relinquished.

The same rule applies if the plaintiff, for any reason, omits to sue in respect of
apart of his claim.

Likewise, if a person is entitled to more than one relief in respect of the same
cause of action, he may sue for all or any of such reliefs. But, if he omits,
without the leave of the Court, to sue for all such relief, he cannot afterwards
sue for any relief so omitted.
The Explanation to R.2 clarifies that, for the purpose of r.2, an
obligation and a collateral security for its performance, and successive
claims arising under the same obligation, are to be deemed respectively
to constitute one cause of action.

1. Illustration to Rule 2A lets a house to B at a yearly rent of Rs. 1200/-.

The rent for the whole of the years1998, 1999 and 2000 is due and
unpaid. A sues B in 2001, for the rent due in 1999. A cannot afterwards
sue B for the rent in respect of 1998 and 2000.
Scope and object of the rule 2,

R.2 is based on the principle that the defendant should not be twice
vexed for one and the same cause. The rule is directed against two evils
- the splitting of claim and the splitting of remedies.

To make the rule applicable, two conditions must be satisfied, namely,

firstly, the previous and the present suits must arise out of the same
cause of action, and secondly, they must be between the same parties.
• 3. Obligation and collateral security

• Under the explanation, an obligation and a collateral security for its

performance constitute only one cause of Action.

• Successive claims arising under the same obligation- Under the same
Explanation, successive claims arising under the same obligation constitute
a single cause of action. Thus, in the case of suit on instalment bonds, the
plaintiff should claim the amount of all the instalments in arrears at the same
time.
• Otherwise, he will be barred from suing for the instalments omitted to
be claimed. So also, where rent for several successive years is in
arrears, but the plaintiff sues only for rent of some years, and omits to
sue for the rents due and in arrears for the other years, he cannot
subsequently sue for such omitted rents.
 Omission to sue for all reliefs If a plaintiff omits, without the leave of the
Court, to sue for any of the reliefs, he cannot afterwards sue for relief so
omitted by him. There are, however, two exceptions to this rule:

i) Where the right to relief in respect of which a further suit is brought did
not exist at the date of the former suit, the second suit is not barred.i

ii) By virtue of the express provisions of 0.34, r.14, where a mortgagee has
asked for and obtained only a personal decree against the mortgagor for
the mortgage amount, he may, notwithstanding 0.2, r.2, subsequently
institute a suit for sale in enforcement of the mortgage.
Set-off A defendant who claims a set-off under 0.8, r.6, is in the position
of a plaintiff [0.8,R.6(2)], and if omits any portion of the claim which he
is entitled to make by way of set-off, he cannot subsequently sue in
respect of such portion of the claim,6. Joiner of causes of action Rules 3
and 4 of 0.2 deal with joinder of causes of action, and provide as
follows: A plaintiff can, in the same suit against the same Defendant, (or
the same defendants jointly) unite several causes of action.
Likewise, if several plaintiffs have causes of action in which they are jointly
interested against the same defendant (or the same defendants jointly)they
may unite such causes of action in the same suit. However, in such cases, the
jurisdiction of the Court as regards the suit will depend on the amount or
value of the aggregate subject matters at the date of instituting the suit. (R.3)

7. Remedy in case of misjoinder Under Section 99 and Order 2, Rule 7, a

misjoinder is regarded only as an irregularity, and the suit will not be
dismissed on the mere ground of misjoinder of causes of action. However
as far as suits for recovery of immovable property are concerned, no cause of
action can be joined without the leave of the Court, except in the following
three cases:- claims for mesne profits or arrears of rent in respect of the
property claimed or any part there of; claim for damages for breach of any
contract under which the property or any party thereof is held; and ill) claims
in which the relief sought is based on the same cause of action. However, a
party in a suit for foreclosure or redemption may ask the Court to be put into
possession of the mortgaged property.
8. Claims by or against executor, administrator or heir Under R.5, no
claim by or against an executor, administrator or heir as such, can be
joined with claims by or against him personally, unless the last
mentioned claims are alleged to arise with reference to the estate in
respect of which the plaintiff or defendant sues or is used as executor,
administrator or heir, or are such as he was entitled to, or liable for,
jointly with the deceased person whom he represents.
Thus, this rule prohibits the joining in one suit of a claim by or against
an executor, administrator or heir as such i.e., in his representative
capacity, except when

a) the claims by or against him in his personal capacity are alleged to

arise with reference to the estate he represents; or

b) the claims are such that he was entitled to or liable for them jointly
with the deceased whom he represents.
9. Power of Court to order separate trials If it appears to the Court that the
joinder of causes of action in one suit may embarrass or delay the trial, or is
otherwise inconvenient, the Court may order separate trials, or make such other
order as may be expedient in the interests of justice. (R.6)

10. Objections as to Misjoinder Rule 7 provides that all objections on the ground
of misjoinder of causes of action must 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 is to be deemed to have been
waived.

The plea of misjoinder cannot be taken up for the first time in appeal or
in second appeal.

The defence of misjoinder is not a ground for reversing a decree.

Section 99 provides that no decree can be varied or reversed on account
of misjoinder of causes of action, unless the defect has affected the
merits of the case or the jurisdiction of the Court.