India: Joinder Of Parties

Last Updated: 18 May 2018
Article by Madhur Tulsiani
Most Read Contributor in India, January 2019

There is always a concern while filing a suit as to whether all the parties concerned have been taken into account or not. Further, if any party is missed, can that party be joined in a suit at a later point of time is another issue to be pondered upon. Fortunately, Code of Civil Procedure, 1908 comes to our rescue in order to provide a remedy for the same.Though the joinder of parties rests upon the discretion of court, Order 1 Rule 1 or Order 1 Rule 3, as the case may be, of Code of Civil Procedure, 19081  is to be read together with Order 2 Rule 3 and Order 2 Rule 6.

Order I Rule 1 of Code of Civil Procedure, 1908 states that:

"1. Who may be joined as plaintiffs

All persons may be joined in one suit as plaintiffs 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 in such persons, whether jointly, severally or in the alternative; and

(b) if such persons brought separate suits, any common question of law or fact would arise."2

The provision clearly mentions two grounds upon which a party may be joined in a suit at a later point of time as well. First, the party must have a right to claim a relief, either arising out of the same act or same transaction or arising out of a series of acts or transactions upon which the suit rests. Second, if a separate suit is filed, there would exist a common question of law or fact. It should also be read that the two conditions must be read together and not in priority of the first over the second.

This provision of the Code has been elaborately explained by the Indian Courts in various landmark judgments. One of the earlier judgments in this regard came even before independence in the year 1935 from Calcutta High Court in the seminal case of HaruBepari and Ors. vs. Roy KshitishBhusan Roy Bahadur and Ors. (21.05.1935)3 , where under Justice Khundkar and Chief Justice Henderson, it was held that, ""The conditions which rendered the joinder of several plaintiffs permissible under Order I, Rule 1. C. P. C. do not necessarily imply that there can be only one cause of action in the suit in which the several plaintiffs join"4

This was followed by Guwahati High Court judgment delivered in the year 1956 in the remarkable case of of SitaramAgarwallavs.Rajendra Chandra Pal where the Court made an observation that, "It is not necessary that all questions arising in the case should be common to two suits if plaintiffs co – sharers had instituted separate suits. If even one question of law or fact common to both the suits could arise, there would be justification for joinder and the requirement of Rule 1 of Order 1 would be satisfied. The defence actually set up would have been raised in both the suits."5  and that "The joinder has caused no difficulty in the consideration of this plea and has not adversely affected the case of the defendant on the merits."6

In the year 1964, another matter in Allahabad High Court came forward in this regard in the celebrated case of of ShambhooDayalvs. Chandra Kali Devi, where the Court made an observation that, "The law was changed after the decision in Salima Bibi v. Sheikh Muhammad (ILR 18 All 131)7  and now it is possible for three plaintiffs to be joined in one suit even on the basis of different causes of action, provided any common question of law or fact would arise if the suit had been filed separately. The change in India was parallel to corresponding changes in English procedure and a joinder of plaintiffs on the same principle is permitted by the English and Indian Courts today."8

Further, in a subsequent Bombay High Court judgement delivered in the year 1972, in the landmark case of Krishna Laxman Yadav and Ors. vs. Narsinghrao Vithalrao Sonawane and Anr., in the Courtroom of JK.K. Desai and Chief Justice M.S. Vaidya, 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."9

It was followed by the verdict delivered by Rajasthan High Court in the case of Hari Ram Fatan Das and Ors. vs. Kanhaiya Lal and Ors., where in the Court of Justice P.N. Singhal, it wasobserved that, "The relief which the -plaintiffs have claimed, jointly, against the defendants thus arises out of that basic fact, not only in regard to that part of the suit which relates to the recovery of the arrears of rent and damages, but also the other part relating to eviction from the suit premises. One essential requirement of Order 1. Rule 1. C. P. C. has therefore been fulfilled in this case. According to the other requirement of the rule joinder of plaintiffs would be permissible if it could be shown that "any common question of law or fact" would arise if they brought their suits separately. It is quite obvious in this case that the common questions of fact which would arise on the filing of separate suits would be those relating to the existence of the tenancy granted by Lal Mohammad and the nonpayment of rent by the defendants at the rate of Rs. 50/- per mensem. It is therefore clear that both the essential requirements of Order I. Rule 1, C. P. C. have been fulfilled and there is no reason why the four plaintiffs should not have join-ed in their suit against the defendants."10

Later, another Bombay High Court judgment delivered in 1978 in the case of Paikanna Vithoba Mamidwar and Anr. vs. Laxminarayan Sukhdeo Dalya and Anr., where the Court opined that, "It is not, therefore, necessary any more that there must be identity of interest or identity of causes of action. What is necessary is the involvement of common question of law or fact."11

An attempt has been made by the legislators, and in order to provide the defendants with equal footing, a similar provision has been provided for in Order 1, Rule 3 of Code of Civil Procedure, 1908 which reads as:

"3. Who may be joined as 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."

It can be observed that the provision provided is more or less the same for both plaintiffs as well as defendants.

This was further clarified and explained by the Honourable Supreme Court in 1999 in the seminal case of Iswar Bhai C. Patel @ Bachu Bhai Patel vs.HariharBehera&Anr.(16.03.1999 – SC),where the Supreme Court observed that:"This Rule requires all persons to be joined as defendants in a suit against whom any right to relief exists provided that such right is based on the same act or transaction or series of acts or transactions against those persons whether jointly, severally or in the alternative. The additional factor is that if separate suits were brought against such persons, common questions of law or fact would arise. The purpose of the Rule is to avoid multiplicity of suits"12 Further the Court observed that the two provisions, namely, Order 1 Rule 3 and Order 2 Rule 3 if read together indicate that the question of joinder of parties also involves the joinder of causes of action. The simple principle is that a person is made a party in a suit because there is a cause of action against him and when causes of action are joined, the parties are also joined.

On providing a harmonious construction to Order 1 Rule 1 or Order 1 Rule 3 separately with Order 2 Rule 3 the issue seems to be resolved. Order 2 Rule 3 of Code of Civil Procedure, 1908 which can be read as:

"3. Joinder of causes of action.

(1) Save as otherwise provided, a plaintiff may unite in the same suit several causes of action against the same defendant, or the same defendants jointly; and any plaintiff's having causes of action in which they are jointly interested against the same defendant or the same defendants jointly may unite such causes of action in the same suit.

(2) Where causes of action are united, the jurisdiction of the Court as regards the suit shall depend on the amount or value of the aggregate subject-matters at the date of instituting the suit."

This clarifies that any party subject to the conditions provided can be joined in the suit if the Court deems fit. Order 2 Rule 3 was further explained by the Honourable Supreme Court in 2017 in the seminal case of Kazimunnisa (dead) by L.R. vs. Zakia Sultana (dead) by L.R. and Ors.), where it was held by the Supreme Court that, "This was an appropriate case where the provisions of Order II Rule 3 of the Code, which deals with joinder of causes of action, could have been resorted to by the Court suo – moto for clubbing the two cases as the facts involved in both the cases satisfied the attributes of Order II Rule 3 of the Code"13

This view was supported by numerous High Courts even before this landmark judgement. In Allahabad High Court in the year 1942 in the case of Karan Sinqh and others vs. LalaKunwar Sen and others, being one of the earlier verdicts delivered in this regard, Justice James Joseph Whittlesea Allsop observed that, "It is necessary that the right to relief should arise out of the same act or transaction or series of acts or transactions and this implies, in my judgment that the acts or transactions, where they are different, should be so connected as to constitute a single series which could fairly be described as one entity or fact which would constitute a cause of action against all the Defendants jointly. Whether this necessary condition exists in any particular case would, of course, depend upon the nature of the case but I am satisfied that this at least is necessary that the case should be such that it could be said that the Court in which the suit was instituted had local jurisdiction in the first instance to deal with the controversies arising between the Plaintiffs and each of the Defendants."14

Further, Justice Sen of Calcutta High Court in the year 1950 in the seminal case of Shew Narayan Singh vs. Brahmanand Singh and Ors.observed that:

"Read in isolation Order 2, Rule 3 does not permit a suit of this description. The rule permits the joining of several causes of action in one suit against one defendant or one group of defendants jointly. It does not sanction a single suit when the cause of action against one defendant is different from the cause of action against another. But it has been held in numerous cases that Order 1, RULE 3 is not confined to joinder of parties only but that it also embraces joinder of causes of action against different parties. It has been further held that Order 2, Rule 3 must not be interpreted so as to override or render nugatory the provisions of Order 1, Rule 3."15

And it was also observed:

"That although a suit as framed may not be in accordance with the provisions of Order 2, Rule 3, nevertheless, it would be maintainable if it complied with the provisions of Order 1, Rule 3 and for the purpose of showing that Order 1, Rule 3 deals not only with joinder of parties but also with joinder of causes of action. It is permissible to join different causes of action against different defendants in one suit so long as the stipulations set out in Order 1, Rule 3 are complied with."16

Further the Court observed the intention behind consolidating various cases in Chitivalasa Jute Mills Vs. Jaypee Rewa Cement17 and was of the opinion that The Code of Civil Procedure does not specifically speak of consolidation of suits but the same can be done under the inherent powers of the Court flowing from Section 151 of the CPC. Unless specifically prohibited, the Civil Court has inherent power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. Consolidation of suits is ordered for meeting the ends of justice as it saves the parties from multiplicity of proceedings, delay and expenses. The parties are relieved of the need of adducing the same or similar documentary and oral evidence twice over in the two suits at two different trials.

Thus, it can be observed that where the same cause of action arises from the acts of various Defendants, the Plaintiff can file a single suit against all the defendants. And the defendants may ask to be added as a party in a suit. In every case, the joinder of a party depends upon the satisfaction of the Court.

Footnotes

1%20of%20Civil%20Procedure

2 (ibid).

3 HaruBepari and Ors. vs. Roy KshitishBhusan Roy Bahadur and Ors, (MANU / WB / 0046 / 1935).

4  (ibid).

5 Sitaram Agarwalla v. Rajendra Chandra Pal AIR 1956 Gau 7

6  (supra).

7 Sheikh Muhammad and Ors. vs. Salima Bibi and Ors. MANU/UP/0107/1895

8 ShambhooDayal vs. Chandra Kali Devi, AIR 1964 All 350,( MANU/UP/0107/1964)

9 Krishna Laxman Yadav and Ors. vs.NarsinghraoVithalraoSonawane and Anr., (MANU/MH/0123/1973)

10 Hari Ram Fatan Das and Ors. vs. Kanhaiya Lal and Ors.,1974, (MANU/RH/0007/1975).

11 PaikannaVithobaMamidwar and Anr. vs.LaxminarayanSukhdeoDalya and Anr.(MANU/MH/0061/1979)

12 Iswar Bhai C. Patel @ Bachu Bhai Patel vs. HariharBehera&Anr. (MANU/SC/0173/1999)

13 Kazimunnisa (dead) by L.R. vs. Zakia Sultana (dead) by L.R. and Ors., (MANU/SC/1426/2017)

14 Karan Sinqh and others vs. LalaKunwar Sen and others, (MANU/UP/0176/1942)

15 Shew Narayan Singh vs. Brahmanand Singh and Ors., (MANU/WB/0181/1950)

16  (supra).

17 Chitivalasa Jute Mills vs. Jaypee Rewa Cement,(MANU/SC/0092/2004)

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