REJOINDER, NON-JOINDER AND MISJOINDER IN A CIVIL SUIT

It is always essential to have at least two parties in a civil suit, where one is the party who has filed the suit and the other is the opposing party against whom the suit has been filed. All the parties whose name is there in the suit do not mean that they are needed one and they may be the non-necessary party, so as to know the concept of joinder, non-joinder and misjoinder, first we need to know the concept related to necessary and non-necessary parties.

NECESSARY/NON-NECESSARY PARTIES TO A CIVIL SUIT

Necessary parties are the one from whom the relief can be claimed and in their absence, the court may dismiss the suit, there is no standard as such to determining who are necessary to the suit, wherever, non-necessary parties are the parties whose name is mentioned in the suit but from whom no claim can be received and in their absence, the suit can never be dismissed.
Note: In case of a partnership firm – All the partners to the firm are regarded as necessary parties.
The Code of Civil Procedure,1908 has two parts classified for procedure relating to civil suits i.e. “Body of Code” and “Rules”. Wherein the latter talks about the rules regarding the non-joinder, joinder and misjoinder of parties in a civil suit.

NON-JOINDER

Non-joinder is regarded as the omission to join a party to a civil suit. It is mentioned in Order 1, Rule 9  which lays down the procedure which needs to be followed in the situation regarding the non-joinder of parties. It is a situation where there is an absence of one party. The Code of Civil Procedure does not define this term but lays down that “no suit shall be regarded by reason of non-joinder of parties, and the court has the duty to deal even in the matter of controversy as far rights and interest of the parties to suit is regarded. Where the suit is dismissed right away as regarding the non-joinder of necessary parties, the plaintiff can file the suit again, creating a multiplicity of litigation, however, the court, in this case, may add the necessary parties on its own or may direct the plaintiff for the same: the same has to be done during or at the time of the trial.
In this type, the defendant has to specify the parties like who they are, and what is their right and interest for which he is pleading the non-joinder.
 
The party can claim when it has suitable grounds and has to claim at the earliest possible time in the way of the written statement. In Laxmishankar Harishankar Bhatt v. Yashram Vasta, it was a dispute between the four sons regarding a property in which one son died and there was the absence of one of the parties to the suit and the defendant argued that in absence of a necessary party, the suit should not be maintainable. The Supreme Court also upheld the party claiming property principle that in the absence of the co-owners of the property, the suit shall not be maintainable until the co-owners implead.
If there is subject matter involved in the suit, then the non-joinder of parties can be claimed at any point of time in partition suits. (Shanmugam v. Saraswati)
If there are non-joinder of non-necessary parties, then the suit is not dismissed prima facie by the court but in these cases, the court calls the plaintiff regarding whether he wants to proceed further with the suit. It depends on the plaintiff’s decision and if he does not implement a party particularly to the suit, that party then must not be bound by the decree which was passed. However, this can be stated that in cases of non-joinder as parties to a suit, the suit shall be dismissed prima facie, if there is non-joinder of necessary parties.

JOINDER OF PARTIES

The joinder of parties simply means the joining of two or several parties as defendants or plaintiffs in the same suit. It is mentioned in Order 1 of the Code. 
Objective behind bringing the joinder of parties in Order 1 of code was that, 
  • there should be no multiplicity of cases.
  • Less wastage of time of courts and
  • So that there can be less expenditure incurred by the parties.
There are mainly three conditions for the joinder of parties:
  1. Where the right of the parties exist, or 
  2. There is an interest of the parties in the subject matter of the suit. Or
  3. In the opinion of the court, any party can be considered as a necessary party.
In a case, Mosley v. General Motor Cor. Ltd, where there were 9 defendants to a suit, the district court said that joinder can take place only when there is right to relief and interest out of the same transaction and the facts and law have to be similar to all the plaintiffs.
So, regarding the joinder of the plaintiff, there shall be a common (not identical ) act or transaction should be involved out of which the common relief can be claimed. Their interest shall lie in the subject matter of the suit and not on any secondary or incidental fact to the main issue in the question, whereas Joiner of the defendant, there has to common (not identical) issue of law or fact involved.
 
Is law provides anything against the compulsory joinder of parties to a suit, wherein the parties must have interest and rights involved? There are certain principles followed in India regarding the joinder of parties stated below:
  • All parties interested in a suit are called controversy parties, as based on their facts and circumstances the whole suit can be decided and fair disposition i.e. justice can be given to the case.
  • It is not practically possible to have a joinder of parties wherein it becomes complicated, difficult and impossible.
This is based on Indispensable party rule, which states that a court has to do “no justice or complete justice”. This provision has been made so that there would be all the parties that needed to be heard and the decision is given in the equitable justice for all.
  • Illustration related to joinder of parties: 
1. A (1st party) promised to B and C (2nd party)  jointly to sell oil of 500 L of quantity, after some days A refuses to supply the oil, so in this case, B and C jointly can file a suit against A as they have same right and interest and also the same transaction in the suit. – JOINDER CAN BE DONE 
2. A contracted with B to supply 100kg of cotton and on the same day also contracted with C to also supply the same amount of cotton. After a day, A refused to both the parties, so in this case, there can be no joinder of parties as there is the absence of the same transaction. – JOINDER CANNOT BE DONE.

MISJOINDER OF PARTIES

These are the parties who have joined either as plaintiff or defendant in a suit or wherein the parties have wrongfully pleaded themselves i.e. plaintiff has been pleaded as a defendant or the vice-versa. It is when there is a situation of the presence of the wrong party. It can also be regarded as having joined out of the law permits. This is not the case where the suit will be dismissed, it will continue as before. This is the case where a problem can be solved normally by deleting or adding the parties to the suit and the suit shall be decided by asking from the plaintiff, from whom he wants to claim relief.
 
As per the precedents, reasons for the court whether there is a misjoinder or not are:
  • Parties having the conflict in the interest of the suit or,
  • The situations and the cause of actions need to be different or,
  • The conflict between the rights of the rights or,
  • Where the defendant in the suit does not belong to the same transaction.
Misjoinder can be of the plaintiff , cause of actions and defendants. All of these are discussed below in detail: 
 

1. Misjoinder of plaintiffs

wherein the two or more parties to the suit have joined as plaintiffs, but there is no interest or right alleged coming out in the same transaction. It can be understood that if the different suits have been brought to the court, then there would be no common situation being seen. This is considered as a misjoinder of plaintiffs.
 

2. Misjoinder of causes of Action

It can be said to be the combination of both the misjoinder of plaintiffs as well as misjoinder of defendants.
 

3. Misjoinder of defendants

wherein the two or more parties to the suit have joined as defendants, there is right alleged existence between the parties in the suit but not out of the same transaction, even when there is no common question of law and there can be separate suits filed. This is regarded as a misjoinder of parties.
 

DIFFERENCE BETWEEN NON-JOINDER OF PARTIES AND MISJOINDER OF PARTIES

When there is no necessary party or proper party is not being joinder in a particular suit then that can be termed as non-joinder of parties, Whereas, in misjoinder of parties, where any two parties are joined together as plaintiff or defendant in one suit but here, there is no necessary party or the proper party involved.
Order 1 Rule no. 13 states that when there is any objection regarding the non-joinder or misjoinder of parties in a suit, then it has to be raised at the earlier possible opportunity and wherein the judgement has not been objected then it would be considered as it has been waived. CIVIL SUIT

REPRESENTATIVE SUIT

There is a provision in Order 1 Rule 8 which states that there may be one person may sue or defend on behalf of the parties having the same interest. That suit is primarily called the Representative Suit. This can be only done with the permission of the court and they have the special procedure mentioned in the above-stated rule itself.
There are certain conditions involved stated below :
  1. The parties involved must be large in number.
  2. There should be common interest and common grievance between the parties but it is not necessary that they must have the same cause of action.
  3. Permission must be obtained from the court regarding these special procedures. CIVIL SUIT
After this kind of receipt of the acknowledgement from the court, there should be circulation of notice regarding the same by the personal service or by public advertisement but at the expenses of the plaintiff. After this, the court shall allow application regarding the same and the suit shall proceed as a representative suit. 

CONCLUSION

As per the explanations stated above, the Order 1 of code states that no suit shall be defeated by reason that it is non-joinder or misjoinder of parties and the court shall look into the interest and rights of the parties involved in it. If there is a necessary party to the suit of non-joinder then the court will order for that party to be in a suit by issuing a decree. CIVIL SUIT
Joinder of parties rests upon the court and can only be considered by the court if there is the same transaction and interests and rights of the parties from that same transaction are being affected.

REFERENCES

  1. http://www.bareactslive.com/ACA/ACT379.HTM#O1
  2. https://indiankanoon.org/search/?formInput=order%201%20rule%209%20of%20cpc
  3. http://www.legalserviceindia.com/articles/cpc.htm
  4. https://www.galgotiasuniversity.edu.in/pdfs/Misjoinder-Non-Joinder-Parties.pdf
  5. https://www.lawteacher.net/free-law-essays/commercial-law/misjoinder-and-non-joinder-of-parties-commercial-law-essay.php#:~:text=In%20case%20of%20non%2Djoinder%20of%20the%20necessary%20party%2C%20an,joinder%20or%20misjoinder%20of%20parties.&text=In%20case%20of%20misjoinder%20or,the%20dismissal%20of%20the%20suit.
  6. https://www.slideshare.net/DrVikasKhakare/code-of-civil-procedure-1908-parties-to-suit
BY- Suhani Gupta
University of Petroleum and Energy Studies , School of Law

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