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Parties to the Suit: Civil Procedure Code of India
The people are free to choose, a method for resolving their conflict. If one party to a dispute chooses to file a civil suit in court to resolve his dispute and seek legal remedies, the other party has to plead his defence and tell the court why he is not entitled to such a remedy. Now suppose the plaintiff is not aware of the party against whom he is entitled to get remedy. So in that situation, it would be difficult to do justice and give the remedy to the plaintiff. So in every suit, there must be at least one plaintiff who institutes the suit and one defendant against whom the suit is filed.
Provisions of the Code of Civil Procedure 1908
The plaintiffs and the defendants are two necessary parties to every suit. However, there may be any number of plaintiffs or defendants in one suit, but at least one of each is necessary.
The plaintiff has to be careful in selecting the opposite party, i.e., the defendant, against whom he wants to file a suit for damages. Now suppose there is more than one person against whom the plaintiff is entitled to claim, but in the suit he has not mentioned that person as a defendant. And later on, he realises his mistake and wants to make him the defendant. The law permits him to do so.
The Code of Civil Procedure (1908), provides under Rule 1 of Order I, for the joinder of plaintiffs and Rule 3 of Order 1 Rule 3 for the joinder of defendants.
Who is a Necessary Party?
A necessary party is one without whom no order can be effectively made. Therefore, the "necessary party" is that party without whose presence the suit must fail. This way, a necessary party is a mandatory party to the suit.
Who is the Proper Party?
A proper party is one in whose absence an effective order can be made but whose presence is necessary for the complete and final disposal of the case.
To understand the concept of necessary party and proper party, let us consider a case where a tenant is required to be evicted from the tenanted premises by the landlord on the ground that he (tenant) has violated a provision of the agreement that he will not sublet the premises. So the landlord filed a suit for eviction against the tenant. In this case, the tenant is a necessary party; however, the sub-tenant will be a proper party.
Joinder of Parties
The main purpose for joinder of parties is to ensure that the suits can be finally and conclusively decided on merits in presence of all parties.
When Plaintiffs may be Joined
The provisions of Rule 1 of Order 1 of the Code of Civil Procedure provide who may be joined as plaintiffs in a suit. This Rule provides that all such people may be joined as plaintiffs in one suit who have, in their own right, a claim arising out of the same cause of action alleged in the suit. And if such people brought separate suits, a common question of law or fact would arise in all of them.
When Defendants may be Joined
The provisions of Rule 3 of Order 1 of the Code of Civil Procedure provide who may be joined as a defendant in a suit. This Rule provides that all such people may be joined as defendants in one suit, if there exists a claim against all such persons, whether jointly, severally, or in the alternative, arising out of the same cause of action as alleged in the suit; and if separate suits are brought against all such persons, then in all such suits any common question of law or fact would arise.
Striking out, Addition, or Substitution of Parties
As a general rule, it is the pleasure of the plaintiff to select his opponent. The courts should not interfere in it. However, the court also has a duty to ensure that all parties involved in the dispute are present in order to provide complete justice and avoid a multiplicity of suits.
Addition or Substitution of Plaintiff
The provision contained under Rule 10(1) of Order I, provides for adding or substituting plaintiffs. However, for adding or substituting a plaintiff, the following conditions must be fulfilled: (1) The suit has been filed in the name of the wrong plaintiff, a bona fide mistake. and (2) that the substitution or addition of the plaintiff is mandatory for doing complete justice in the suit.
Striking out or Adding Parties
The court has the power to strike out or add a party to the suit under the provisions contained in Rule 10(2) of Order I. The court must add a party if it appears to the court that he is a necessary party for doing complete justice in that case. Further, if it appears to the court that a party is not required for the complete disposal of the case and that party has been added to the suit unnecessarily, the court has the power to strike out such party from the suit.
How to add a minor to the suit as a party?
If a minor person has an interest in the subject matter of the suit, he may be added to it under the guardianship of an adult person who does not have conflicting interests with the minor's. If the minor is to be named as a plaintiff, he must do so through a next friend.
As per the provisions of Rule 1 of Order XXXII, every suit by a minor shall be instituted in name by a person who, in such a suit, shall be called the next friend of the minor. And if a suit has been instituted against a minor without the next friend, the defendant may apply to the court to have the plaint, be taken off the file. In that case, the court may levy costs against the pleader or the person who filed the suit.
Further if the suit has been filed against a minor making him a defendant in the suit. As per the provisions contained in Rule 3 of Order XXXII, the court shall appoint a proper person to be guardian of such minor for the suit.
In the case of Kasturi v. Iyyamperumal, the Supreme Court has laid down the following two tests to determine whether a particular party is a necessary party to a proceeding or not:
There must be a right to some relief against such a party in respect of the matter in issue.
It is not possible to pass an effective decree in his absence.
In Anil Kumar v. Shivnath, the Hon’ble Supreme Court observed that the object of the rule of necessity is to bring on record all persons who are parties to the dispute relating to the subject matter so as to avoid multiplicity of proceedings and inconvenience.
The object of the rule of necessity is to promote the cause of justice. It ensures that all the persons who have any interest in the dispute relating to the subject-matter, must be brought before the court at the same time for complete and final disposal of the matter, thereby avoiding multiplicity of litigation and inconvenience to the other parties.
Frequently Asked Questions
Q1. What is the effect of the misjoinder or non-joinder of parties to suit?
Ans: According to Rule 9 of Order I of CPC, a suit shall not be dismissed because of the misjoinder or non-joinder of a party. However, if a party is a necessary party to the suit, then it is the duty of the court to bring that party on the record of the suit for the interest of justice.
Q2. Which provision of the Code of Civil Procedure provides for striking out one of the parties from the suit?
Ans: The provision contained under Rule 10(2) of Order I the Code of Civil Procedure 1908 is for the purpose of giving necessary powers to the court to strike out the name of the party improperly joined in the suit as well as to add the name of the party who appears to the court to be a necessary or proper party to the suit.
Q3. What is the procedure for adding a minor as a plaintiff to the suit?
Ans: According to Rule 1 of Order XXXII of the Code of Civil Procedure, a minor may be added as a plaintiff to a suit through a next friend, who must be a major and not have a conflict of interest with the minor.
Q4. What is the purpose of Rule 10 of Order I the Code of Civil Procedure, 1908?
Ans: The provision contained under Rule 10 of Order I the Code of Civil Procedure 1908 is for adding or substituting plaintiffs in the suit.
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