The question of joinder of parties may arise either as regards the plaintiffs or as regards the defendants. An Act may be done by a single individual and may adversely affect another individual. In that case, the question of joinder of parties does not arise at all. The question of joinder of parties arises only when an Act is done by two or more persons or it affects to two or more persons. All persons may be joined in one suit as plaintiffs according the conditions required under rule 1 of order 1. The conditions which are required to be fulfilled are that the right to relief alleged to exist in each plaintiff arises out of the same act of transaction; and the case is such of a character that, if such person brought separate suits, any common question of law or fact would arise. On the other hand, a person can be joined as a defendant according to the provisions of rule 3 of order 1. The conditions to be required to be satisfied in the case of defendant are that the right to relief alleged to exist against them arises out of the same act of transaction; and the case is of such a character that, if separate suits were brought against such person, any common question of law or fact would arise.
The above tests were described as true tests by Supreme Court in Deputy Commr., Hardoi V. Rama Krishna.
There would be misjoinder of parties if person having a separate cause of action file a suit jointly. It would not be in a case where a plaintiff files a suit against more than one person and a common question of law or fact would arise if separate suits were filed. Where in a suit there are two or more defendants and two or more cause of action, the suit will be bad for misjoinder of of defendants and cause of action, if different cause of action are joined against different defendants separately. Such a misjoinder is technically called multifariousness.
As regards the non-joinder of parties, a distinction has been drawn between the non-joinder 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. The court in various cases held that if the decree cannot be effective without the absent parties, the suit is liable to be dismissed. In a particular case, where one of the mortgagees instituted the suit on the mortgagee, it was held that this rule did not cure the defect, as the matter was not a matter of procedure. Thus, suit was held to be not maintainable on the ground that an effective decree giving discharge to the mortgagors could not be passed by reason of the non-joinder of some of the mortgagees. 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. The scope of this rule was elaborately discussed by Allahbad High Court in Maqsood Ali v. Zahid Ali that except where there is a legal bar to the maintainability of a suit by reason, non-joinder of a party, or where in his absence, the decree that may be passed might become infructuous or inexecutable, the court cannot dismiss a suit for non-joinder of a person. When the question is such that it can be decided between the parties to the suit, the court cannot decline to do so because the third parties might be interested thereon. The plea of non-joinder must be raised at the earliest opportunity and if the objection as to non-joinder as is not raised at an early stage, it is deemed to have been waived.
Where two or more persons may have been joined as plaintiffs in one suit but the right to relief alleged alleged to exist in each plaintiff does not arise out of the same act or transaction (or series of acts or transaction) and if separate suits were brought by each plaintiff no common question of fact or law would have been arisen, there is misjoinder of plaintiffs. The objection on the ground of misjoinder of the plaintiffs, should be taken at the earliest possible opportunity; if not, it is be deemed to have been waived.
Likewise, where two or more persons have been joined as defendants in one suit but the right to relief alleged to exist against each defendant does not arise out of the same act or transaction (or series of acts or transactions) and if separate suits were brought against each defendant, no common question of fact or law would have arisen, there is misjoinder of defendants.
where in a suit there are two or more plaintiffs and two or more causes of action, the plaintiffs should be jointly interested in all the causes of action. If the plaintiffs are not jointly interest in all the cause of action, the case is one of misjoinder of plaintyiffs and cause of action. The objection on the ground of misjoinder of plaintiffs and causes of action should be taken at the earliest opportunity.
Where in a suit, there are two or more defendants and two or more cause 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. Such a misjoinder is technically called multifariousness. The objection on the ground of multifariousness should be taken at the earliest opportunity.
In a suit for recovery of loan advanced on an overdraft account, the joinder of a claim against the agent on the ground that he had acted in excess of his authority and against the managing director on the ground that he had approved of it would render the action multifarious.
In a case, where the plaintiff purchased the suit house in which two pesons were residing as tenants separately and he brought a suit for eviction against both the defendant-tenents claiming different relief against them. It was held that the suit was bad for multifariousness.
Rule 9 expressly and unequivocally declares that no suit is liable to be dismissed by reason of misjoinder of parties. In other words, misjoinder of parties is not fatal to the suit. It is mere irregularity covered by sections 99 and 99-A of the Code. Hence the various high courts, on the question of misjoinder of parties held that no decree shall be reversed or substantially varied, nor shall a case be remanded in appeal inter alia on account of misjoinder of parties, not affecting the merits of the case or the jurisdiction of the court. Where there is a misjoinder of parties, the name of the plaintiff or the defendant who has been improperly joined may be struc out under r 10 and the case may be proceed with.
According to the proviso of the Rule 9 of Order 1 nothing in the said rule applies to non-joinder of a necessary party. A necessary party is that in whose absence the court cannot pass an effective decree. If the decree cannot be effective without the absent party, the suit is liable to be dismissed. However, where the joinder of a person is only a matter of convenience and he has not be joined as a party, he may be added at any stage or the suit may be tried without impleading him. The allowing of the suit depends on whether a party who has not been joined is a necessary party or merely a proper party. If a necessary party is not joined, then, the suit is liable to be dismissed.
In case of non-joinder of parties, Rule 9 provides against the dismissal of suit. The only course open to the court under such circumstances is formally to call upon the plaintiff to make his election and confine the suit to one set of defendants. In case of non-joinder of the necessary party, an opportunity should be given to the plaintiff to add the necessary party. The Calcutta High Court in the case of suit for recovery of money against LIC, it held that all the heirs of the claimant would be necessary parties to the suit and non-joinder of some of them would be bad.
Rule 1 of Order 1 is subject to local, or special law, statutory provisions as also to any special form of procedure prescribed by any law. Thus, any special law provides that a certain person must beimpleaded as a defendant although no relief is claimed against him, then failure to implead him will be fatal to suit notwithstanding the provision of Order 1 rule 9.
Where a suit for possession was filed, and the defendant derived his title from the auction-purchaser in liquidations proceedings of a company, but the plaintiff sued for declaration that the auction proceedings and the subsequent conveyance by auction purchaser to defendant were void in law under a certain Act, it was held by the Supreme Court in Vishnu v. Rajan Textile Mills, that the liquidator was a necessary party and in his absence the suit for declaration must fail.
The Supreme Court held that a candidate who had withdrawn before contesting elections was not a necessary party and so his non-joinder was not fatal to the maintainability of the election petition and that therefore he could be impleaded as there was nothing in the Act which excluded their application.
All objections on the ground of non-joinder or misjoinder of parties must be taken at the earliest opportunity, otherwise they will be deemed to have been waived. But, if the objections as to non-joinder of necessary party has been taken by the defendant at the earliest stage and the plaintiff declines to add the necessary party, he cannot subsequently be allowed in appeal to rectify the error by applying the amendment.
The Supreme Court in various cases held that an objection to non-joinder and misjoinder of necessary party should be taken at the earliest opportunity before the settlement of issues. An objection as to non-impleadment of a party, in a writ petition has to be taken at the stage of second appeal. The Andhra Pradesh High Court held that an issue of non-joinder of a necessary party can be raised in appelleate court. An objection as to non-impleadment of a party, in a writ petition has to be taken at the stage of counter-affidavit and not at the belated stage of hearing.
An issue of non-joinder of a necessary party can be raised in appellate court. An objection as to non-impleadment of a necessary party, which was not taken in the first appeal cannot be allowed to be taken at the stage of second appeal.
Objection as to misjoinder, when not raised in court of first instance is no ground for reversing a decree when they do not affect the merits of the case. The plea cannot be raised for the first time in the second appeal. When objection to want of parties is not raised by the defendant, it must be deemed to have been waived. But, court can add one as a party if it thinks it necessary. Where a necessary party is not impleaded, the objection even if not taken in the trial court, cannot be said to be waived. It can be raised even in revision.
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