PARTIES TO SUIT

SUIT
ESSENTIAL OF SUIT
JOINDER OF PARTIES,PLAINTIFF
DEFENDANT
NON JOINDER AND MIS JOINDER OF
PARTIES
REPRESENTATIVE SUIT

SUIT
The term suit is not defined under the in the C.P.C. but
by various decisions it can be said that “Suit ordinarily means
a civil proceedings instituted by presentation of a plaint.
The term suit has been defined in the Black’s Law Dictionary
(1990) as “Suit” is a generic term of comprehensive
signification referring to any proceeding by one person or
persons against another or others in court of law wherein the
plaintiff pursues the remedy which the law affords him for the
redress of any injury or the enforcement of a right, whether at
law or in equity.” in general term suit is the proceedings
happen in furtherance of dispute between parties to it.

Essentials of Suit
 There are four essentials of suit

1. Opposing party/parties
2. Subject-matter in dispute
3. Cause of action
4. Relief

Name of Parties (there must be two opposing parties) – In a

suit there must be at least two parties the plaintiff & the
defendant. There is no limitation with regards to number on
either side.

Cause of Actions – A cause of action, in law, is a set of facts

sufficient to justify a right to sue to obtain money, property, or
the enforcement of a right against another party. The term also
refers to the legal theory upon which a plaintiff brings suit
(such as breach of contract, battery, or false imprisonment).

it is a set of facts or circumstances that a plaintiff is required

to prove. A person is party to a suit if there is a cause of action
against him. The cause or the set of events or circumstances
which leads or resulted into presentation of a plaint or filing a
suit. – lay man language Legally – The cause of action means
every facts which is necessary for the plaintiff(s) to be proved
with a view to obtain a decree in his favour.Cause of action
means all essential facts constituting the right and its
infringement.

SUBJECT MATTER
It can be established that subject
matter of the suit is the particular thing in respect of which
the suit has been filed. A subject matter in a suit can either be
property or some personal rights of the plaintiff. There cannot
be practically anything other than these things for a subject
matter of a suit. In terms of property, it may either be rent, or
a dispute related to mortgage, redemption, mesne profits, sale,
gift, etc., and the personal rights of plaintiff have a wider
umberella and include everything else. But it must be kept in
mind there exists a test for a suit to know which rights are
enforceable or and which ones are not. Section 9 f the Code of
Civil Procedure, 1908 provides for this test. It says that the
Court shall have jurisdiction to try all suits of civil nature
excepting suits of which their cognizance is expressly or
impliedly barred.

Relief claimed by the plaintiff –

no court will give relief unless relief is specifically

claimed by the party

Relief is of two types-

1) specific relief and

2) alternative relief.

Parties to Suit: Order 1

 JOINDER OF PLAINTIFF RULE 1

Rule 1 this rule deals with the joinder of plaintiff. All persons
may be joined in one suit as plaintiffs where-

1. any right to relief in respect of, or arising out of, the same act
or transaction or series of acts or transactions is alleged to
exist in such persons, whether jointly, severally or in the
alternative; and
2. If such persons brought separate suits, any common question
of law or fact would arise.
The “and” here means that both the condition must be
fulfilled.. In the landmark case of Krishna Laxman Yadav
and Ors. v. Narsinghrao Vithalrao Sonawane and Anr., it
was observed that, “The result of the provisions of Order 1,
Rule 1 of the Civil Procedure Code is that where right to
relief exists in favour of several plaintiffs as a result of the
same transaction even if the right is several the plaintiffs
would be entitled to join in the same suit for the several
reliefs the only precondition being that common question of
law or fact arose between the plaintiffs.” Illustration- A
publishes a defamatory article against B, C in local daily
newspaper. Now B and C can jointly file a suit against A for
defamation since the relief arises out of same act of
transaction and also there is a common question of fact and
law is there.

JOINDER OF DEFENDANT RULE 3

Rule 3 Now the other party to a suit is defendant. Rule 3 of
the CPC state about who can be joined as defendants. It is
very much same as Order 1 rule 1.All persons may be joined
in one suit as defendants where-

(a) any right to relief in respect of, or arising out of, the same
act or transaction or series of acts or transactions is alleged to
exist against such persons, whether jointly, severally or in the
alternative; and

(b) if separate suits were brought against such persons, any

common question of law or fact would arise.

The plaintiff may join in one suit all or any of the persons
severally or jointly and severally liable on any contract.
Similarly, where the plaintiff is in doubt as to the person from
whom he is entitled to obtain redress, he may join two or
more defendants in one suit. Illustration

In between the concept of plaintiff and defendant to a suit

there lies a concept of necessary and proper party. A
necessary party is indispensible to the constitution of 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 proceedings.

MIS JOINDER AND NON JOINDER OF PARTIES

RULE 9 ORDER 1

Rule 9 of order 1 deals with the non-joinder and

mis-joinder of parties to a suit. Where a person who is
necessary or proper party to suit has not been joined this is
called non joinder of parties. Any non-joinder of necessary
party leads to the dismissal of case. Also if any person has
been joined to a suit in contravention of rule 1 and 3 this will
lead to misjoinder of part.

Non-Joinder of Parties
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 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.

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. 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.

Misjoinder Non- Joinder

When mistakenly a party

was added to the suit is
misjoinder. That means When a party is necessary
when a party was added but to the suit and he was not
he doesn’t have to do added to the suit, then it is
anything with the present a non-joinder.
issue then it considered to
be misjoinder.

In case of misjoinder the When the court found

court should not dismiss the about the non-Joinder of
suit rather; may order in the party who are necessity
such kind as the order not to the suit, and
bind on the misjoined party adjudicating on such
and the relief should be matter without them is a
sought only upon the matter of waste, then the
respective necessary party. court can dismiss the suit,
or may order the plaintiff
to add the necessary
parties or may add the
 party on their own.

There is no possibility of There is a possibility. Of

dismissal, since it won’t dismissing the suit, in
much affect the interest of respect to the effectiveness
the party at large. of the decree/order.

Representative Suit: Rule 8

Representative suit is a suit filed by or against one or more

persons on the behalf of themselves and others having the
same interest in the suit. It provides that when there are
number of person similarly interested similarly interested in a
suit, one or more of them can, with the permission of the court
or upon a direction from the court, sue or be sued on behalf of
themselves and others. When suit is filled by or against person
in representative capacity, the fact should be stated in body of
plaint as well as in the title of the suit. In

The following are the conditions need to be fulfilled for

representative suit:-

1. The parties must be numerous.

2. They must have same interest in the suit- explained in the case
of Duke of Bedford Ellis., 1901 AC I (HL)., “given a
common interest and a common grievance a representative
suit was in order if the relief sought was in its nature
beneficial to all whom the plaintiff proposed to represent”. In
the case of T.N Housing Board v. T.N. Ganapathy., (1990) I
 SCC 608., residential buildings were given to the applicants
of low income group. After all the procedure excess demand
was made by the Board. The allottees challenged the demand
by filling a representative suit. This was challenged as
separate demand notice was issued to each allottees, giving
rise to separate cause of action. Negating this court held that
all has same interest and thus suit was maintainable.
3. Permission by court
4. Notice should be given to all the parties who would be bound
by the decree, otherwise a person might be prejudicially
affected by such decree even though he was not on record and
was not aware of the suit.

Before framing of suit every kind suit it is very necessary for

the plaintiff to test his case on two things (1) limitation period,
(2) Res judicata and Res subjudice.