But several persons cannot file a joint suit for damages for their wrongful detention in jail after the expiry of their term of imprisonment. All persons having a common cause of action are entitled to join as plaintiff.
The right to be impleaded as party and to contest the proceeding must be expressly conferred by the statute without which a party who is not necessary for the proceedings cannot claim to be impleaded.
Where it appears to the court that any joinder of plaintiffs may embarrass or delay the trial of the suit, the court may put the plaintiffs to their election or order separate trials or make such other order as may be expedient. (Order I, Rule 2).
Joinder of defendants:
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 (Order I, Rule 3).
Thus where A received injuries while riding in an omnibus belonging to B through a collision between that omnibus and a cart belonging to C, A may join B and C as defendant in one suit for damages for personal injury caused by their negligence because the injury to the plaintiff arose from the same transaction or series of transactions and the case involves common question of fact.
Where it appears to the court that any joinder of defendants may embarrass or delay the trial of the suit, the court may order separate trials or make such other order as may be expedient in the interests of justice. (Order I, Rule 3-A).
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. (Order I, Rule 7).
Non-joinder of parties:
Where a person who is a necessary party to a suit has not been joined as a party to the suit it is a case of non-joinder. A suit should not be dismissed on the ground of non-joinder. A distinction has to be drawn between the non-joinder of a person who ought to have been joined as a party and the non-joinder of a person whose joinder is only a matter of convenience or expediency.
If the decree cannot be effective without the absent parties, the suit is liable to be dismissed. In cases where the joinder of a person as a party is only a matter of convenience, the absent party may be added or the suit may be tried without him.
Non-joinder—of no consequence-effect:
In a suit for declaration of title and ejectment of tenants under compromise decree, one co-tenant was not party in the suit. He was not residing in premises in question and was also not claiming any interest under compromise decree. Suit is not bad for non-joinder of necessary party as omission to implead him is of no consequence.
Where there are more plaintiffs than one and they are joined together in one suit, but the right to relief alleged to exist in each plaintiff does not arise out of the same act or transaction and if separate suits were brought no common question of law or fact would arise, it is a case of misjoinder of plaintiffs.
Misjoinder of defendants takes place when two or more persons are joined as defendants in one suit, but the right to relief alleged to exist against such of them does not arise from the same act or transaction and there is no common question of law of fact.
Similarly, a misjoinder of plaintiffs and causes of action takes place where in a suit there are two or more plaintiffs and two or more causes of action but the plaintiffs are not jointly interested in all the causes of action.
A misjoinder of defendants and causes of action takes place where in a suit there are two or more defendants and two or more causes of action, but different causes of action have been joined against different defendants separately.
Order I, Rule 13 provides that all objections on the ground of non-joinder or misjoinder of parties shall 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 shall be deemed to have been waived.
Misjoinder of parties and causes of action in a suit is technically called multifariousness. Where in a suit there are two or more defendants and causes of action, the suit will be bad for misjoinder of defendants and causes of action, if different causes of action are joined against different defendants separately.
The joinder of such separate causes of action and separate defendants makes the suit bad for multifariousness. The objection on the ground of multifariousness should be taken at the earliest opportunity and any objection not so taken shall be deemed to have been waived.
Effect of non-joinder or misjoinder of parties and multifariousness:
As stated above, non-joinder or misjoinder of parties is not fatal to the suit. Order I, Rule 9, clearly lays down that 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 matters in controversy so far as regards the rights and interests of the parties actually before it.
The only exception provided to this rule is furnished by the general principle that a court will refrain from passing a decree which would be ineffective and infructuous. The inability of the court to pass an effective decree, when all the parties interested in the subject-matter of the suit are not before it, may be due either to the nature of the action or the nature of the interest that the person, who is not made a party to the action, has in the subject-matter of the suit.
In the former class of cases come suits for partition or dissolution of partnership and rendition of accounts, while in the latter class come suits with respect to some property belonging to a joint Hindu family when all the coparceners are not made parties. But these rules have no application where the interest of the person not impleaded as a party in the suit is ascertained or ascertainable.
Necessary party in suit for declaration of title and injunction:
Where plaintiff had obtained property from his transferor defendant who had obtained property from original owner by unregistered instrument. Held, that principle of “Caveat Emptor” and Maxim “nomo dat quid non habet” were applicable. As such, original owner was necessary and proper party to suit.
To sum up, in the case of non-joinder of necessary parties the court cannot pass an effective decree in their absence. In such a case the suit cannot proceed and is liable to be dismissed if the plaintiff on being provided with an opportunity to amend the plaintiff refuses to do so. But in the case of non-joinder of proper parties the non-joinder is not fatal.
The court can add the absent party or try the suit without him. Where nothing is sought against a particular party, non-joinder of such party has no effect. The grantee of land from Mandi Committee sought possession of land and claimed nothing against Government or Mandi Committee. Non-joinder of Government or Mandi Committee has no effect under Order I, Rule 13.
Once a multifarious suit is allowed to proceed to trial and results in a decree without recourse to rule 9 of Order I, the plea of multifariousness should be deemed to be waived. Section 99 provides that no decree shall be reversed or substantially varied, nor shall any case be remanded in appeal on account of any misjoinder of parties or causes of a tion 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.
Where necessary party refuses to join as plaintiffs:
If any person who ought to have been joined as plaintiff does not consent to join as plaintiff, he may be made a defendant in the suit.
In a suit for injunction restraining interference with possession, the applicant sought its impleadment in the suit as defendant, principally, on the ground that it had entered into agreement of sale with the defendant opposite party through her attorney in respect of a part of the land in suit. The court held that the agreement to sale does not create interest or charge on immovable property and as such refusal to implead the party by the court below was proper.
Suit against a dead person:
Where a suit is brought against a person who is found to have died before its institution, the plaint cannot be amended by bringing his legal representative on the record, though the suit may have been filed in ignorance of his death, for a suit against a dead person is a nullity.
But if the suit is against several defendants one of whom is found to have died before the institution, the suit will not be dismissed and will be proceeded against the other defendants and the legal representative of the defendant can be joined if he was a necessary party.
Suit filed against a juristic person not in existence:
A suit filed against a juristic person which was not in existence when the suit was filed is incompetent.
Suit in the name of wrong plaintiff:
(1) 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 bona fide 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 thinks just.
(2) The court may at any stage of the proceedings strike out the name of any party improperly joined, or add the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary to enable it to adjudicate upon and settle all the questions involved in the suit.
(3) No person shall be added as plaintiff suing without a next friend or as the next friend of a plaintiff under disability without his consent.
(4) Where a defendant is added, the plaint shall be amended, and amended copies of the summons and of the plaint shall be served on the new defendant.
(5) The proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons. (Order I, Rule 10).
Addition of Party:
Order I, Rule 10 involves both a narrower scope and wider scope, and while a necessary party, that is a party without whom a legal decree cannot be passed in a suit, has every right to be included, even a ‘proper’ party can press for such relief.
The court must primarily consider whether the presence of that party would advance the total and satisfactory adjudication of the lis of the subject-matter of controversy. If the presence of such a party would be essential or highly desirable in the interest of justice, the Court has a wide discretion to implead such a party also.
In a suit for dissolution of partnership and accounts in which one partner is the head of a joint Hindu family, the son of such a partner is a proper party and can be impleaded to safeguard the interest of “the family though he cannot get any right adjudicated by a decree in the suit inter se between himself and his father.
In a writ petition challenging selection policy adopted by Central Govt, with regard to allotment of fuel linkage for Independent Power Projects (IPP) to state, the applicants who have been selected and in whose favour allotment was made by Central government are necessary parties. As no order adversely affecting such applicants can be passed and it is not possible to grant effective relief without their impleadment.
Rule of present or direct interest-relaxation—Judicial Discretion:
The question of addition of parties under rule 10 of Order I, C.P.C. is generally not one of initial jurisdiction of the court but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case.
Where the subject-matter of litigation is a declaration as regards status or a legal character, the rule of present or direct interest may be relaxed in a suitable case where the court is of the opinion that by adding a party it would be in a better position effectually and completely to adjudicate upon the controversy.
But the court should be very circumspect in dealing with the application of a third party seeking leave to become party in the suit, when the plaintiff is opposed to it. Impleadment should not normally be allowed where impleadment of third party involves de novo trial.
Grounds for Addition of Parties:
Under Order I, Rule 10(2) the court is empowered to add a party on either of the two grounds, viz., (1) that he should have been joined when the suit was originally instituted but was not joined through inadvertence or otherwise; (2) that though he might not have been a necessary or proper party at the time of institution of the suit, his presence has since become necessary to enable the court to effectually and completely adjudicate and settle all the questions involved in the suit.
The provisions of Order I, Rule 10(2), C.P.C. is meant to give to every person an opportunity of being heard whose rights be affected by the ultimate decree. It also provides for striking out the names of persons whose interest or rights may not be affected.
A perusal of sub-rule (2) of rule 10 of Order I makes it clear that it requires the court to add a party not only as a matter of course but on the given conditions where the presence of the person sought to be added is necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit.
The finding is a condition precedent by a court for addition of a party. These conditions mentioned in sub-rule (2) of rule 10 of Order I apply with equal force whether the application is on behalf of the plaintiff or any other person or even by an outsider without any exception.
Difference between a necessary party and proper party:
A necessary party is one without whom no order can be made effectively. A proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding.
The landlord is a proper party to the suit for perpetual injunction against the Municipal Corporation for demolition of demised building for reason of unauthorised construction though relief is sought for against the Municipal Corporation and not against him.
The demolition would materially affect the right, title and interest of the landlord even if the unauthorised construction was made with or without the consent of landlord or the lessor.
The beneficiary, i.e., local authority or company or statutory authority, etc. for whose benefit land is acquired is a ‘person interested’ and property in matter of determination of compensation. If it is not impleaded as party it is entitled to appeal or writ petition to assail the legality or correctness of enhanced of award.
In the absence of the beneficiary who has to bear the higher compensation, no complete and effectual determination of binding, just and proper compensation to acquired land can be made.
Suit was filed asking injunction restraining defendents from possession of plaint property on the basis of registered will executed by mother of the plaintiff. Purchaser of property pending suit cannot be said to be either necessary or proper party and they cannot be impleaded as parties to suit.
Respondent in suit for specific performance of contract entered into compromise and got deleted his name from arraignment of parties. Sons of respondent are not necessary and proper property. Their plea is not tenable to the effect that question of genuineness of deed of relinquishment signed by father cannot be decided in their absence. The reason is that the suit is one for specific performance and not for title.
A person may be necessary as defendant to the suit when (1) there is a right to some relief against him in respect of the dispute involved in the suit-: and (2) his presence is necessary to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit.
Thus where a person who is not party to argument to sale and acquired the status as a co-owner with the defendant during the pendency of suit by virtue of Court, is not a necessary party in a suit for specific performance. Not being party to the agreement of sale the suit for specific performance can be decided without her presence.
In Banks the rate of interest is decided on the basis of circulars issued by the Reserve Bank of India. In a case where question involved related to charge of an interest on loans granted by Bank, application to implead Reserve Bank of India as necessary party respondent was allowed.
Order I, Rule 10(2), C.P.C. gives a clue as to who should be deemed to be a necessary party. The term “all the questions involved in the suit” occurring in Order I, Rule 10(2), C.P.C. means questions as between the parties to the litigation, that is to say, questions with regard to the right set up and the relief claimed on one side and denied or withheld on the other hand and not the question which may arise between co-plaintiff and co-defendant inter se or to questions between the party to the suit and a third party.
State Government is a necessary party in a suit challenging the declaration of surplus land under ceiling laws on the ground that the order passed by authorities is illegal.
But suit for perpetual injunction filed on behalf of dead persons by co-plaintiff was dismissed and became final. Thereafter substitution cannot be allowed.
Suit was filed by Malenkara Church for declaration that it was episcopal and not union of churches. It meant that it gives the Catholicos/ Malenkare Metropolitan/the Metropolitan of the Diocese any title to or control over the properties held by the Parish Churches. In the absence of the Parish Churches no declaration affecting them can be granted.
It is settled principle of law that the benamidar sufficiently represents the real owner and the decision in the proceeding brought by or against the benamidar will bind the real owner, even though he may not have been made a party.
It is well settled that in a proceeding by or against the benamidar the person beneficially entitled is fully affected by the rules of res judicata. It is open to the beneficial owner to apply to be joined in an action, but whether he is or is not made a party, a proceeding by or against the benamidar who is his representative in its ultimate result, is fully binding on him.
Suo Motu Addition of Parties by the Court:
The court can make such impleadment on its own under Order I, Rule 10, C.P.C., if it thinks necessary for the purposes of adjudicating the controversies between the parties.
Addition of Parties and Abatement-Procedure on ‘death, marriage and insolvency of Parties’:
As long as one of the heirs has been brought on record who substantially represented the estate of the deceased plaintiff, the application could not be dismissed on the ground that the suit has abated or it could not proceed. If the daughter of the deceased had not been brought on record, the issue with regard to her being a necessary party, she can be added under Order I, Rule 10, C.P.C. The question of abatement in the appeal could not arise.
In a suit for recovery of money declaration of rights of plaintiffs and liabilities of defendents became final by preliminary decree. Thereafter one of the defendants died. Legal representatives of deceased can be substituted under Section 151 or Order I, Rule 10, CPC.
Where in a suit for injunction against the defendants, one of the defendants died and the plaintiff moved no substitution application and for” setting aside the abatement within time prescribed by law and the much delayed application filed under Order XXII, Rule 4 for substitution along with an application for condonation of delay and setting aside the abatement were rejected, the court could not direct the bringing of heirs on the record under Order I, Rule 10 and Rule 10 will not apply to such a case. The view taken in Khalil Ahmad v. Additional District Judge, Gorakhpur, to the contrary was held to be erroneous.
In Mt. Bibi Rehmani Khatoon v. Harkoo Gope, the Supreme Court examined the scheme of Order XXII of the Code of Civil Procedure and after having examined the scheme, it held:
“The concept of abatement is known to civil law. If a party to a proceeding, either in the trial court or in appeal or revision dies and the right to sue survives or a claim has to be answered, the heirs and legal representatives of the deceased party would have to be substituted and failure to do so would result in abatement of proceedings. Now, if the party to a suit dies and the abatement takes place, tha suit would abate.”
Order XXII of the Code of Civil Procedure lays down a procedure wholesome for moving an application to bring on record the heirs of the deceased litigant. If the application is not filed withion 90 days, the suit will stand abated and the effect of its abatement under the provisions of any of the previous rules of Order XXII is dealt with in rule 9, and sub-rule (2) thereof provides the remedy by the person aggrieved by the abatement.
Under rule 9, the plaintiff or the person claiming to be the legal representative of the deceased plaintiff can apply for setting aside the abatement and if it is proved that he was prevented by any sufficient cause from continuing the suit, the court can set aside the abatement or dismissal of the suit on such terms as to costs.
On setting aside the abatement, life into the suit is infused and it will proceed from the stage at which the death had taken place. It may be stated that a legal representative can continue the suit only on the cause of action sued upon and cannot set up a new or individual right.
He thus cannot take or set up a plea open to him personally. His plea would be such as is appropriate to his character as legal representative. He will not be entitled to take a plea contrary to the case taken by the deceased.
Difference in Addition of Parties under Order 1, Rule 10 and Order XXII, Rules 4 and 9:
Order XXII of the Code of Civil Procedure specifically lays down the procedure to be followed on “death, marriage and insolvency of parties”. Order I, Rule 10, C.P.C. confers power on a court to add a person as a party at any stage of the proceeding upon or without the application of either party, if in the opinion of the court the addition of such a person appears to be just in order to enable it effectively and completely to adjudicate upon and settle all the questions involved in the suit.
There is a vital difference between Order I, Rule 10 and Order XXII, Rules 4 and 9 of the Code. Order I, Rule 10 does not deal with substitution of heirs and legal representatives of a deceased. It confers power on the court to implead or add a person as party or to strike down a person improperly joined, if the Court finds it necessary for determination of the real matter in dispute.
Order XXII, Rule 4 confers right on a plaintiff to bring on record the heirs and legal representatives of a deceased. If the right to sue does not survive, the suit shall come to an end and shall abate.
The right conferred by Order I, Rule 10, C.P.C. enables the court to add a person as a party. Order I, Rule 10 has a specific and limited purpose which is different from one contemplated by rules 4 and 9 of Order XXII of the Code.
The two provisions deal with different eventualities and contingencies. It is one thing to file an application to implead certain persons as party to the suit in place of a deceased party under Order XXII, Rule 4 C.P.C. and it is entirely different to apply under Order I, Rule 10, C.P.C. to add a new party.
The main difference is that the rights of the parties in one case would be altogether different than of the party in the other case. A legal representative has the same status and rights as that of the deceased, whereas the rights and obligations of a person impleaded under Order I, Rule 10, C.P.C. would not be circumscribed, and he would be entitled to take any plea which he is advised to do.
In State Trading Corporation of India Ltd. v. K.V. Vaidyalingam, this aspect of the matter has been considered and the difference between the rights of two types of persons brought on record has been highlighted.
In Gobardhan Das v. Darshan Singh, a learned Judge has referred to the purpose of Order I, Rule 10(2) of the Code and laid down that addition of a party under the aforesaid provision can be done only in a pending suit and not in one where the defendant is dead.
In Sisir Kumar Tarafdar v. Mandindra Kumar Biswas, a Division Bench of the Calcutta High Court held that the first part of sub-rule (2) gives the court the power to strike out the name of any party improperly joined, and the second for the addition of a party.
The learned Judges pointed out the significance of the word “joined” and “added” and omission of the word “substituted” in the wording of sub-rule (2). The omission to use the word “substitute” in Order I, Rule 10(2), in the opinion of the learned judges, was deliberate.
They held that the case of mere substitution is distinct from addition and is not covered by sub-rule (2) of rule 10 of Order I of the Code. The Full Bench of the Allahabad High Court in Smt. Mahendra Kaur v. Hafij Khalil and others, agreed with that view and held that sub-rule (2) of rule 10 of Order I enables the Court to join a person as a party who ought to have been joined.
This provision was not meant to be” applied to a case of substitution of one party on the death of his predecessor-in-interest. There would be no power in a court under Order I, Rule 10, C.P.C. to substitute the heirs and legal representatives of the deceased-defendant. In the case of abatement taking place, what is necessary further is its setting aside. Under Order I, Rule 10, C.P.C., the court may add or subtract a party. It cannot set aside the abatement and substitute the heirs of the deceased.
What will follow from the above principle is that since there is a specific provision dealing with the substitution, abatement and setting aside the abatement in Order XXII, Rule 4 that would exclude the general provision of addition of party made in Order I, Rule 10(2) of the Code of Civil Procedure.
In Bhagwan Swarup v. Mool Chand, the Supreme Court was called upon to consider the scope of Order I, Rule 10 and Order XXII, Rule 4 of the Code of Civil Procedure. In that case the heirs of the deceased respondent No. 1 who had not been impleaded within time by the appellant of the appeal before the Supreme Court, had applied under Order I, Rule 10 for being brought on the record.
The Supreme Court held that as the appellant had not moved the High Court within time by filing an application under Order XXII, Rule 4, the limitation for taking action under the said provision having since expired, the consequence could not be circumvented by resort to the provision of Order I, Rule 10, C.P.C.
So long as one of the heirs has been brought on record who substantially represented estate of the deceased plaintiff, the application could not be dismissed on the ground that the suit has abated or it could not proceed.
If a person is not a necessary party to the litigation or his presence is not necessary to adjudication the case effectually and completely, he shall not be added as defendant without the consent of the plaintiff. The ground that he is likely to suffer a loss, if he is not made a defendant is no ground to impaled him as such.
Addition of Parties in Appeal:
An appeal being the continuation of the suit, a person may be added as a party to it, even at the stage of the appeal, provided his addition is necessary “in order to enable the court to effectively and completely adjudicate upon and settle all the questions involved in the suit”.
The questions involved in the suit mean and include only those questions that are involved in the suit between the parties to it, who are already on the record and cannot include those questions that may subsequently arise between them and the person who seeks to be impleaded as a party to the suit.
In the present case, the applicant in a suit brought by him obtained a consent decree against the respondents, a partnership firm and its partners. The decree was to the effect that all the timber in a certain forest division was his exclusive property and that the respondents could not transfer the said property to any person nor could they remove the same.
The only dispute involved between the parties to the appeal was as to whether or not the consent decree was obtained through fraud or collusion, whether or not it was binding on the firm when all its partners were not impleaded as parties to the suit, and whether or not the transfer in favour of the appellant was in violation of the terms of the partnership deed. It was held that the State cannot be added as a party to the appeal to raise the new questions as to whether or not the lease period had expired, or whether or not the respondents partners had any right to transfer to the appellant their rights under the lease, much less when none of the parties had questioned the State’s paramount title in the forest. The State not being a party to the suit cannot obviously be bound by the decrees passed therein and was fully competent to take all steps under law that it might deem necessary to protect its interest.
Contesting Parties suit necessary Parties in Appeal:
Contesting parties to suit are necessary parties in appeal. No relief can be granted in appeal where the contesting original defendants were not impleaded in appeal as there is absence of necessary parties.
Intervention in Appeal:
Intervention in appeal against the dismissal of writ petition is not maintainable at the instance of those persons without there being any decision of High Court on their claim.
Intervention in Appeal:
Supreme Court refused to interfere in appeal against the order rejecting impalement as party by developer in a suit by builder for specific performance of agreement to develop land against land owner.
The builder had entered into separate agreement with developer. The issues involved as to assignment of rights can be thrashed out in a properly constituted suit and cannot be decided in an appeal against interlocutory order. Decision in appeal would prejudice developer if he files separate suit.
Impalement at belated Stage in Appeal—not allowable:
Persons who were not even parties before High Court cannot be allowed to be impleaded as parties in appeal before Supreme Court on the ground of illiteracy on such belated application for impleadment.
Mahendra Singh v. Devi Gir:
The question whether a party should be impleaded or not, has to be decided with reference to the provisions of Order I, Rule 10 sub-rule (2), C.P.C. which gives power to the court to add parties, whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit.
The powers given under sub-rule (2) of Rule 10 of Order I, are wide enough to enable the court to implead persons as defendants in a suit, who may not be, in the strict sense, necessary for effectually and completely adjudicating upon and settling all questions involved in the suit.
Where the suit is for injunction to restrain the defendants from interfering with the possession of the plaintiff and from allotting the land in suit to anybody and the appellants seeking to be impleaded as defendants claim to be in possession of the land in question and successor-in-office of one who was admittedly originally in possession of the land, the court is justified in impleading the applicants as it is going to adjudicate on the rights and title to the land in question, and any adjudication with regard to the land in suit is bound to affect the rights and interests of the applicants in the land in dispute, if not directly at least indirectly.
The court below has not committed any error of jurisdiction in directing the impleadment of the applicants as the order passed by it is clearly covered by the provisions of sub-rule (2) of Rule 10 of Order I, C.P.C.
If any law prescribed that a certain person must be impleaded as a defendant, even though no relief is sought against him, the failure to implead him will be fatal to the suit, notwithstanding the provision of Order I, Rule 9. Persons who are not essential to be impleaded as defendants to a suit again fall in two classes, (1) those who are in some way interested in, or connected with, the relief sought against others; and (2) others, who are not at all interested in, or connected with, it.
Persons of the latter class must not be impleaded as defendants at all, but persons of the former class may be impleaded as proper parties at the discretion of the plaintiff by way of abundant caution, or to avoid future litigation and the relief will not be refused on the ground that they have not been impleaded.
Order I, Rule 10, for impleadment of necessary or proper party is not applicable to procedure prescribed under sections 18 and 30 of Land Acquisition Act, being inconsistent with it.
Avoidance of collessive suit by a suo motu Addition of Parties by Court:
The provisions of Order I, Rule 10(2) of the Code clearly empower the Court to implead any person as party suo motu, who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit.
In case the plaintiff is permitted as a rule to choose his own opponents and the Court does not interfere on the point, in that event it may be that a collusive decree is obtained against the real owner or interested person without impleading him as a party and when the decree will become final, then at a very late stage the person vitally affected or the real owner may come to know about it.
This would lead to defeat the interest of justice which should not be permitted in a court of law and to avoid these ugly situations the parliament with considerable ingenuity enacted Order I, Rule 10(2) of the Code which has been couched in a language having very wide sweep.
Representative Suits (Order I, Rule 8):
(1) The general rule is that all persons interested in a suit ought to be made parties thereto, but there is an exception to this general rule where one or more persons may sue or defend on behalf of all having the same interest in the suit. Such suits are called representative suits and are governed by Order I, Rule 8 of the Code of Civil Procedure, which provides that 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.
(2) But the court shall in such case give, at the plaintiff’s expense, notice of the institution of the suit to all such persons either by personal service, or where from the number of persons or any other cause such service is not reasonably practicable, by public advertisement, as the court in each case may direct.
(3) Any person on whose behalf or for whose benefit a suit is instituted or defended under sub-rule (1) may apply to the court to be made a party to such suit.
(4) No part of the claim in any suit shall be abandoned and no such suit shall be withdrawn and no agreement, compromise or satisfaction shall be recorded in any such suit, unless the court has given, at the plaintiff’s expense, notice to all persons so interested in the manner specified in sub-rule (2).
(5) Where any person suing or defending in any such suit does not proceed with due diligence in the suit or defence, the court may substitute in his place any other person having the same interest in the suit.
(6) A decree passed in a suit under this rule shall be binding on all persons on whose behalf, or for whose benefit, the suit is instituted, or defended, as the case may be.
For the purpose of determining whether the persons who sue or are sued, or defend, have the same interest in one suit, it is not necessary to establish that such persons have the same cause of action as the person on whose behalf, or for whose benefits, they sue or are sued, or defend the suit, as the case may be.
Scope of Order 1, Rule 8—Conditions of its Applicability:
It will thus be seen from the above that there are four conditions before the provisions of this rule can apply. They are as under: (1) the parties are numerous—the word ‘numerous’ is by no means a term of art. (2). It implies a group of persons, such as would make it inconvenient to implead all of them individually. The word is not synonymous with “numberless” or “innumberable”. The number must be definite for the court to recognise as non-impleaded parties to the suit; they have the same interest; (3) the necessary permission of the court has been obtained; and (4) notice has been given to all the persons interested in the suit.
Notice not necessary in case of Binding precedent:
Supreme Court decision with regard to setting up of shrimp culture industry within prohibited area and in ecology fragile coastal area, was rendered after giving widest publicity. Judgment is binding on all persons even if they were not parties in earlier case. Few persons cannot be allowed to be heard again on the plea that they were unaware of the proceedings. The principle of Order I, Rule 8 is not applicable in case of binding precedent.
Aim and Object of Representative Suits—Protection of large sections of society:
The object of the rule is to afford convenience in suits where there is a community of interest amongst a large number of persons, so that a few should be allowed to represent the whole in order to save trouble and expense. It is designed to save time and expense and to insure a convenient trial of questions in which a large body of persons are interested while avoiding multiplicity of suits and harassment to parties.
The object for which this provision is enacted is really to facilitate the decision of a question in which large bodies of persons are interested without recourse to the ordinary procedure. In cases where the common right or interest of a community of members of an association or large sections is involved there will be insuperable practical difficulty in the institution of suits under the ordinary procedure, where each individual has to maintain an action by a separate suit.
Res judicata and Representative Suit:
A decree passed in a representative suit operates as res judicata in a subsequent suit against such interested persons although they may not have been added as parties to the suit. Explanation VI to section 11 provides that where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.
Permission of Court Mandatory:
The suit might have been instituted by representatives of a particular community, but that by itself was not sufficient to constitute the suit as a representative suit. For a representative suit, the court’s permission under Order I, Rule 8, C.RC. is mandatory.
It may be stated that any member of a community may successfully bring a suit to assert his right to the community property or for protecting such property by seeking removal of encroachments there from. Such a suit need not comply with the requirements of Order I, Rule 8. The suit against alleged trespass even if it was not a representative suit on behalf of the community would be a suit of this category.
Order I, Rule 8—Not Exhaustive of Representative Suits— Withdrawal:
Order I, Rule 8, C.RC. is not exhaustive of representative suits. A representative suit falling within Order I, Rule 8, C.P.C. may not be withdrawn without leave of the court for the suit itself is instituted after notice to all such persons on whose behalf it is instituted and consequently withdrawal could be only after notice to them.
But those are not the only suits which cannot be allowed to be withdrawn without notice to the others having similar interest in the subject-matter; there are other suits also which fall into this class and such suits are suits for partition, suits for accounts, suits for specific performance, in all of which not merely the plaintiff but even the defendant may be entitled to some relief.
Included in such suits are also suits by trustees which may affect the entire body of the trustees and the beneficiaries. Such suits, or appeals which are merely continuation of the suits, cannot be allowed to be withdrawn, without reference to others having a similar interest for that would set at naught all proceedings.
While the plaintiff is undoubtedly dominus litis and may withdraw and put an end to the proceedings unconditionally, still in the aforementioned cases if any party interested seeks to come on record and continue the proceedings, he is entitled to do so. Nay, it would be the duty of the court to permit such person to come on record; and that would not merely avoid multiplicity of proceedings but would effectively safeguard the interest of all concerned.
Illustration of applicability of doctrine of Res judicata:
The suit was laid against the RSS represented by its Manager, the President and a member. The suit was decreed by the trial court and confirmed by the High Court and special leave petition against that order was also dismissed.
However, in a civil revision, the High Court declared the decree as illegal on the ground that the representative suit was filed without leave of the court. The Supreme Court held in Singhai Lai Chand Jain v. Rashtriya Swayam Sewak Sangh, Panna and others, that clause (b) of Order I, Rule 8 was clearly applicable and that the President, the Manager and a member ol the RSS duly represented the Sangh and defended the suit for the benefit of all the persons so interested in the Sangh and that the doctrine of res judicata prohibited the members of the RSS to obstruct the execution of the decree. The appeal was accordingly allowed.
Power of court to permit a person or body of persons to present opinion or to take part in the proceedings.—While trying a suit, the court may, if satisfied that a person or body of persons interested in any question of law which is directly and substantially in issue in the suit and that it is necessary in the public interest to allow that person or body of persons to present his or its opinion on that question of law, permit that person or body of persons to present such opinion, and to take such part in the proceedings of the suit as the court may specify (Order I, Rule 8-A).