Analysis of Order 1 Rule 9 CPC

Order 1 Rule 9 of the Code of Civil Procedure, 1908: Navigating Misjoinder, Non-Joinder, and the Indispensability of Necessary Parties in Indian Civil Litigation

Introduction

Order 1 Rule 9 of the Code of Civil Procedure, 1908 (CPC) is a pivotal provision aimed at ensuring that substantive justice is not defeated by technical objections relating to the composition of parties in a suit. It encapsulates the principle that a suit should not be dismissed outright merely due to the misjoinder (improper joining) or non-joinder (omission) of parties. However, this general rule is qualified by a crucial proviso concerning the non-joinder of a "necessary party." This article seeks to provide a comprehensive analysis of Order 1 Rule 9 CPC, drawing upon judicial interpretations from the Supreme Court of India and various High Courts, as reflected in the provided reference materials. It will explore the object of the rule, the distinction between misjoinder and non-joinder, the implications of the proviso, and the interplay of this rule with other provisions of the CPC.

The Genesis and Object of Order 1 Rule 9 CPC

Order 1 Rule 9 CPC fundamentally serves as a rule of procedure, designed to facilitate the administration of justice rather than to create or extinguish substantive rights. The Allahabad High Court in Rameshwar Bux Singh v. Ganga Bux Singh[11] elucidated this, stating that Order 1 Rule 9 "is a rule of procedure and not of substantive law." The court further elaborated on its objective: "The paramount object of Order 1, Rule 9, as indeed of all the rules contained in Schedule 1, Civil P. C., is to regulate the business and procedure of the Courts, so that justice may be done between the parties, according to their rights and interests at law and by their contracts. Such rules are framed for expediency in order that judicial business may be conveniently and expeditiously despatched, and that there may be an end to litigation. Rules which regulate the business and procedure of the Courts are 'matters of mere machinery', they can never create new legal rights, where none existed before the parties crossed threshold of the court house."[11] This underscores the rule's intent to prevent suits from failing on purely technical grounds of party constitution, provided the court can adjudicate upon the rights of the parties actually before it.

The General Principle: No Suit to be Defeated

The substantive part of Order 1 Rule 9 CPC states: "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 matter in controversy so far as regards the rights and interests of the parties actually before it." This provision empowers the court to proceed with the suit and decide the dispute concerning the parties who are on record. In Savita Garg (Smt) v. Director, National Heart Institute[19], the Supreme Court, while discussing non-joinder in the context of consumer protection but referencing CPC principles, observed that "even no suit shall fail because of misjoinder or non-joinder of parties. It can proceed against the persons who are parties before the court."[19] This reflects the general legislative intent to ensure that procedural defects in party impleadment do not act as an insurmountable bar to the adjudication of a claim on its merits, so long as the court can effectively determine the issues between the existing parties.

The Crucial Proviso: Non-Joinder of a Necessary Party

The seemingly broad sweep of the main provision of Order 1 Rule 9 is significantly curtailed by its proviso, which was introduced by the CPC (Amendment) Act, 1976. The proviso reads: "Provided that nothing in this rule shall apply to non-joinder of a necessary party." This addition fundamentally altered the landscape, making the non-joinder of a necessary party a fatal defect that can lead to the dismissal of the suit.

Defining a "Necessary Party"

The determination of who constitutes a "necessary party" is critical to the application of this proviso. A necessary party is one in whose absence no effective decree can be passed, or one whose presence is indispensable for a complete and final decision on the questions involved in the suit. The Supreme Court in Kasturi v. Iyyamperumal And Others[7], elaborated on this, distinguishing between necessary and proper parties. It noted that a necessary party is one "whose absence would prevent an effective decree," while a proper party is one "whose presence would facilitate complete adjudication."[1]

In Ramesh Hirachand Kundanmal v. Municipal Corporation Of Greater Bombay And Others[5], the Supreme Court reiterated that a necessary party is "one without whom no effective order can be made." The Bombay High Court in Ultra Merchandise & Retails Limited v. Entertainment India Limited[13], citing the Supreme Court in Udit Narain Singh Malpaharia v. Addl. Member, Board of Revenue, Bihar (AIR 1963 SC 786), stated: "A necessary party is one without whom no order can be made effectively".[13] The Supreme Court in Mumbai International Airport Private Limited v. Regency Convention Centre And Hotels Private Limited And Others[1], while primarily dealing with Order 1 Rule 10(2), defined a necessary party as "one whose absence would prevent the court from issuing an effective decree."[1]

The concept was further emphasized in service jurisprudence. In Public Service Commission, Uttaranchal v. Mamta Bisht And Others[21], the Supreme Court held that if a person is likely to suffer from the order of the court and has not been impleaded, it violates principles of natural justice, and the non-joinder of such a necessary party is fatal. This was echoed in Vijay Kumar Kaul And Others v. Union Of India And Others[20] and Katara Shantilal Gorjibhai v. State of Gujarat[24].

Consequences of Non-Joinder of a Necessary Party

The non-joinder of a necessary party, by virtue of the proviso to Order 1 Rule 9, is fatal to the suit. This means the suit is liable to be dismissed if a necessary party is not impleaded. In Kanakarathanammal v. V.S Loganatha Mudaliar And Another[4], the Supreme Court upheld the dismissal of the suit due to the non-joinder of the appellant's brothers, who were deemed necessary parties as co-heirs. The Court noted, "the appellant's failure to join her brothers as necessary parties led to the dismissal of her suit."[4]

The Bombay High Court in Ultra Merchandise[13] explicitly stated, "What Order 1, Rule 9 and Section 99 say is that no suit can fail, nor can any decree be reversed, only the ground of non-joinder or misjoinder of a party, but this cannot and does not apply to the non-joinder of a necessary party: that is always fatal."[13] Similarly, in Public Service Commission v. Mamta Bisht[21], the Supreme Court affirmed that "proviso to Order 1, Rule 9 of the Code of Civil Procedure, 1908... provides that non-joinder of necessary party be fatal."[21]

The persistence in non-joinder can also be detrimental. In Shaik Hussain v. Basheer Khan[23], the Karnataka High Court referred to the Privy Council decision in Naba Kumar Hazra v. Radheshyam Mahisa (AIR 1931 PC 229), where the plaintiff failed to implead co-mortgagors despite the defect being pointed out. The Privy Council observed that Order 1 Rule 9 had no application in an appeal before the Board in such a case where the party had ample opportunity to remedy the defect in India.[23] A strong stance was noted in a Company Law Board matter, In The Matter Of: v. Companies Act, 1956[25], where it was argued that "when plaintiff fails to add necessary parties in the suit, the court shall dismiss the suit for non-joinder of necessary parties."[25]

Interplay with Order 1 Rule 10 CPC

Order 1 Rule 10 CPC grants the court wide powers to add or strike out parties. Sub-rule (2) of Order 1 Rule 10 allows the court, at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, to order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that 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 in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.

While Order 1 Rule 9 states that a suit shall not be defeated by non-joinder (subject to the proviso), Order 1 Rule 10 provides the mechanism to cure such defects by allowing the impleadment of parties. The Supreme Court in Mumbai International Airport[1] emphasized that the discretion under Order 1 Rule 10(2) "must be exercised judiciously, guided by law rather than convenience." The cases of Kasturi[7] and Ramesh Hirachand Kundanmal[5] extensively discuss the principles for adding parties under Order 1 Rule 10(2), distinguishing between necessary and proper parties. If a party is found to be necessary, and is not on record, the court may direct their impleadment under Order 1 Rule 10(2). Failure to do so, or if such impleadment is not possible, could then trigger the fatal consequence envisaged by the proviso to Order 1 Rule 9.

As noted in Savita Garg[19], "Even the court has the power under Order 1 Rule 10(4) to give direction to implead a person who is a necessary party."[19] Thus, before a suit is dismissed for non-joinder of a necessary party, the court typically provides an opportunity to implead such a party.

Order 1 Rule 9 CPC and Section 99 CPC

Section 99 of the CPC deals with appeals and states that no decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder or non-joinder of parties or causes of action 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. Similar to Order 1 Rule 9, Section 99 also has a proviso, added by the 1976 Amendment: "Provided that nothing in this section shall apply to non-joinder of a necessary party."

The Bombay High Court in Ultra Merchandise[13] highlighted this parallel amendment: "From this, it is at once clear that while Order 1, Rule 9 and Section 99 were amended (in the context of non-joinder of a necessary party), there was no such amendment to the Order 1, Rule 13."[13] This underscores the legislative intent to treat the non-joinder of a necessary party as a serious defect that can vitiate the proceedings even at the appellate stage, unlike other mere irregularities in joinder.

Waiver of Objection (Order 1 Rule 13 CPC)

Order 1 Rule 13 CPC stipulates 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. However, the question arises whether the objection regarding the non-joinder of a necessary party can be waived. Given the fatal nature of such non-joinder as established by the proviso to Order 1 Rule 9 and Section 99, the prevailing view, as suggested in Ultra Merchandise[13], is that this defect is not waivable. The court observed, "Therefore, Mr. Khandeparkar submits, this is a plea that can never be one of those capable of being ‘waived’ under Order I, Rule 13. Indeed, even if not taken, if a court finds that a necessary party has not been joined, the suit must fail, for a necessary party is one in whose absence no effective order can be made."[13]

Conclusion

Order 1 Rule 9 CPC, particularly with its proviso, strikes a balance between preventing technical dismissals of suits and ensuring that adjudication is meaningful and effective by mandating the presence of necessary parties. While the general rule promotes substantive justice over procedural technicalities, the proviso underscores the indispensability of parties whose absence would render any decree ineffectual or would violate principles of natural justice. The judiciary, through consistent interpretation, has clarified that a "necessary party" is one without whom the court cannot effectively and completely adjudicate the matter. The failure to implead such a party is not a mere procedural irregularity but a fundamental defect that can lead to the dismissal of the suit. Litigants and courts must therefore diligently ensure the impleadment of all necessary parties to safeguard the integrity and efficacy of the judicial process, bearing in mind that this is a defect that, unlike other forms of misjoinder or non-joinder, cannot be overlooked or waived.

References