Misjoinder and Nonjoinder of Parties in Indian Civil Litigation: A Procedural Analysis

Misjoinder and Nonjoinder of Parties in Indian Civil Litigation: A Procedural Analysis

Introduction

The edifice of civil justice rests significantly on the correct constitution of a suit, particularly concerning the parties involved. The doctrines of misjoinder and nonjoinder of parties are pivotal in ensuring that a suit is maintainable, effectively adjudicated, and leads to a conclusive decree binding on all relevant persons. Misjoinder refers to the improper impleading of a party who ought not to have been joined, either as a plaintiff or a defendant. Conversely, nonjoinder signifies the omission of a party who ought to have been joined. The Code of Civil Procedure, 1908 (CPC), under Order I, lays down the foundational principles governing the joinder, misjoinder, and nonjoinder of parties, aiming to prevent multiplicity of proceedings and ensure that justice is rendered comprehensively. This article undertakes a scholarly analysis of these principles, drawing upon statutory provisions and judicial pronouncements primarily from Indian jurisprudence.

Conceptual Framework: Necessary v. Proper Parties

A fundamental distinction in the law of parties is between a 'necessary party' and a 'proper party'. The determination of whether a party falls into either category has profound implications for the maintainability and outcome of the suit.

A necessary party is one in whose absence no effective decree can be passed at all. Their presence is indispensable for the court to adjudicate effectively and completely on the questions involved in the suit.[1] The Supreme Court in Kasturi v. Iyyamperumal And Others clarified that if a necessary party is not impleaded, the suit itself is liable to be dismissed.[2] Similarly, in Mumbai International Airport Private Limited v. Regency Convention Centre And Hotels Private Limited And Others, the Apex Court reiterated that a necessary party is one whose absence would prevent the court from issuing an effective decree.[3] The test is whether the party's right is so inextricably linked to the relief sought that the matter cannot be decided without them.[4]

A proper party, on the other hand, is one whose presence is not essential for an effective decree but is nevertheless relevant for a complete and final decision on the questions involved in the proceeding. Their presence enables the court to adjudicate more "effectually and completely" on all matters in controversy.[5] While the non-joinder of a proper party may not be fatal to the suit, their impleadment can aid in avoiding future litigation and providing a more comprehensive resolution.[6]

The plaintiff, as dominus litis (master of the suit), generally has the prerogative to choose the defendants. However, this right is subject to the imperative of joining all necessary parties.[2]

Statutory Provisions under the Code of Civil Procedure, 1908

Order I of the CPC is the primary repository of rules concerning joinder of parties. Key provisions include Rules 9, 10, and 13.

Order I, Rule 9: Misjoinder and Non-joinder

Order I, 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 embodies the principle that procedural defects regarding parties should not, by themselves, lead to the dismissal of a meritorious claim. However, this rule is qualified by a crucial proviso: "Provided that nothing in this rule shall apply to non-joinder of a necessary party."

The proviso underscores the critical distinction between necessary and proper parties. While misjoinder of any party or non-joinder of a proper party is not fatal, the non-joinder of a necessary party can indeed lead to the failure of the suit.[7] This was affirmed by the Supreme Court in GANGUBAI RAGHUNATH AYARE v. GANGARAM SAKHARAM DHURI (D) THR. HIS LRS. AND ORS., emphasizing that care must be taken to ensure the necessary party is before the court, otherwise the suit or proceedings will have to fail.[8] The Madras High Court in Venkataramana v. N. Munuswamy Naidu also highlighted that non-joinder of a necessary party is fatal.[9]

Order I, Rule 10: Power of Court to Add or Strike Out Parties

Order I, Rule 10(2) CPC empowers 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.

The discretion vested in the court under this sub-rule is judicial and must be exercised based on sound legal principles.[3], [10] The primary consideration is whether the party sought to be added is a necessary or proper party for the effective adjudication of the dispute.[5] The Supreme Court in Ramesh Hirachand Kundanmal v. Municipal Corporation Of Greater Bombay And Others held that a party can be added if they have a direct interest in the subject matter of the litigation.[4]

Order I, Rule 13: Objections as to Non-joinder or Misjoinder

Order I, Rule 13 CPC mandates 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."

This rule promotes diligence and prevents parties from raising such technical objections at a belated stage to derail proceedings.[11], [12] However, a significant point of contention is whether the waiver under Rule 13 applies to the non-joinder of a *necessary* party. The Bombay High Court in Ultra Merchandise & Retails Limited v. Entertainment India Limited opined that Order I, Rule 13 cannot govern the taking of an objection as to the joinder of a necessary party, as a suit must fail if a necessary party is not joined, irrespective of whether a plea is taken.[13] This aligns with the proviso to Rule 9. Conversely, some courts have held that an objection regarding the non-joinder of a necessary party can be raised even at a later stage, including revision, if not taken in the trial court.[11]

Judicial Interpretation and Application

Consequences of Non-Joinder of a Necessary Party

As established by the proviso to Order I, Rule 9 CPC and numerous judicial decisions, the non-joinder of a necessary party is fatal to the suit.[8], [9] The court cannot pass an effective decree in the absence of such a party. The suit, in such circumstances, is liable to be dismissed, not merely because of a procedural lapse, but because the very foundation for a valid adjudication is missing.[14]

Consequences of Non-Joinder of a Proper Party

The non-joinder of a proper party is not fatal. The court can proceed with the suit and adjudicate upon the rights and interests of the parties actually before it.[9] However, the court may, under Order I, Rule 10(2), direct the impleadment of a proper party to ensure a more comprehensive resolution and avoid multiplicity of proceedings.

Consequences of Misjoinder of Parties

Misjoinder of parties, whether plaintiffs or defendants, does not warrant the dismissal of the suit.[15] The court has the power under Order I, Rule 10(2) CPC to strike out the name of any party improperly joined. The Supreme Court in Prem Lala Nahata And Another v. Chandi Prasad Sikaria held that a defect of misjoinder of parties does not make the suit one barred by law or liable to rejection under Order VII, Rule 11(d) CPC.[16] It is treated as a procedural irregularity that can be rectified.[17]

Misjoinder of Causes of Action and Parties

Issues of misjoinder of parties often intertwine with misjoinder of causes of action (governed by Order II, CPC). While a plaintiff may unite several causes of action against the same defendant(s) (Order II, Rule 3), doing so improperly can lead to complexities. However, even in cases of misjoinder of causes of action and parties, the suit is not automatically defeated. The court may order separate trials (Order II, Rule 6) or direct the plaintiff to amend the plaint.[18], [19] The Kerala High Court in Manikkan v. Govindaraj noted that an objection of misjoinder of plaintiffs or causes of action is a procedural objection, and the court can even treat the plaint as relating to two suits and dispose of them accordingly.[17]

Specific Contexts

The principles of joinder are applied contextually:

  • Suits for Specific Performance: Generally, only parties to the contract are necessary parties. Strangers to the contract claiming independent title are neither necessary nor proper parties, as their inclusion would convert the suit into one for title.[2], [3]
  • Declaratory Suits: In suits for declaration of status, the scope of necessary or proper parties might be wider. The Supreme Court in Razia Begum v. Sahebzadi Anwar Begum And Others discussed that parties whose rights might be indirectly affected could be joined to prevent future litigation, especially considering Sections 42 and 43 of the Specific Relief Act, 1963.[20]
  • Writ Petitions: In writ proceedings under Article 226 of the Constitution, all persons or bodies against whom relief is sought, and all persons whose rights would be directly affected by the orders, are necessary parties.[21]

The Doctrine of Waiver and its Limits

Order I, Rule 13 CPC clearly stipulates that objections regarding non-joinder or misjoinder must be taken at the earliest opportunity, failing which they are deemed waived. This applies unequivocally to the misjoinder of parties and the non-joinder of proper parties.[11], [12]

The critical question, as alluded to earlier, is whether the non-joinder of a *necessary* party can be waived. The proviso to Order I, Rule 9 CPC strongly suggests that it cannot, as it explicitly states that "nothing in this rule shall apply to non-joinder of a necessary party." If a suit cannot be "defeated" by non-joinder generally, but this protection is removed for non-joinder of a necessary party, it implies such a defect is inherently fatal. The Supreme Court's stance in GANGUBAI RAGHUNATH AYARE[8] and the reasoning in Ultra Merchandise[13] support the view that an objection to the non-joinder of a necessary party can be raised at any stage, even by the court suo motu, because the absence of such a party renders any decree ineffective. The very purpose of a necessary party is to ensure a binding and executable decree, which cannot be achieved if they are absent, irrespective of waiver.

Procedural Recourse and Court's Approach

When an issue of misjoinder or non-joinder arises, courts are generally inclined to provide an opportunity to cure the defect rather than dismissing the suit outright, especially if the defect is curable. For instance, in cases of misjoinder of causes of action leading to misjoinder of parties, the plaintiff may be allowed to amend the plaint and proceed with one cause of action.[19] The court's power under Order I, Rule 10(2) to add or strike out parties is extensive and aimed at ensuring substantive justice.

While Order VII, Rule 11 CPC provides for the rejection of a plaint on certain grounds, misjoinder or non-joinder of parties, by itself, is generally not a ground for rejection under this provision, unless it leads to the suit being barred by some law.[16] The case of Church Of Christ Charitable Trust & Educational Charitable Society v. Ponniamman Educational Trust saw a plaint rejected under Order VII, Rule 11, where non-compliance with statutory requirements and lack of a valid cause of action were central, with joinder issues being part of the broader defects.[22]

Courts are expected to adopt a pragmatic approach, balancing procedural propriety with the imperative of adjudicating disputes on merits. The Patna High Court in Janki Rai And Others v. Maharaja Bahadur Ram Ran Bijaya Prasad Singh observed that once a multifarious suit has been allowed to proceed and has resulted in a decree, the defect is considered to have been waived and is irrelevant.[23]

Conclusion

The law relating to misjoinder and nonjoinder of parties in India, primarily enshrined in Order I of the CPC, seeks to ensure that civil suits are properly constituted for effective and complete adjudication. The distinction between necessary and proper parties is paramount, with the non-joinder of a necessary party being a fatal defect that can lead to the dismissal of the suit, notwithstanding the general principle that no suit should be defeated for misjoinder or non-joinder. While objections to party constitution must be raised at the earliest opportunity, the non-joinder of a necessary party remains a critical flaw that often transcends the doctrine of waiver.

Judicial interpretation has consistently emphasized a balance: upholding procedural integrity while preventing technicalities from thwarting substantive justice. The courts possess wide discretionary powers to add, strike out, or substitute parties to ensure that all relevant interests are before them, thereby fostering comprehensive dispute resolution and minimizing multiplicity of litigation. Ultimately, a meticulous approach by litigants in identifying and impleading the correct parties, and a judicious exercise of discretion by the courts, are essential for the efficient administration of civil justice in India.

References

  1. Udit Narain Singh Malpaharia v. Additional Member Board Of Revenue, Bihar And Another (1962 SCC 0 338, Supreme Court Of India, 1962).
  2. Kasturi v. Iyyamperumal And Others (2005 SCC 6 733, Supreme Court Of India, 2005).
  3. Mumbai International Airport Private Limited v. Regency Convention Centre And Hotels Private Limited And Others (2010 SCC 7 417, Supreme Court Of India, 2010).
  4. Ramesh Hirachand Kundanmal v. Municipal Corporation Of Greater Bombay And Others (1992 SCC 2 524, Supreme Court Of India, 1992).
  5. Dev Infrastructures Pvt. Ltd. v. Jainco Developers Pvt. Ltd. (Delhi High Court, 2015), citing Mumbai International Airport (P) Ltd. v. Regency Convention Centre & Hotels (P) Ltd., (2010) 7 SCC 417.
  6. Razia Begum v. Sahebzadi Anwar Begum And Others (1958 AIR SC 886, Supreme Court Of India, 1958).
  7. Brijrajsingh And Others v. Bitto Devi (Smt.) And Another (Madhya Pradesh High Court, 1991).
  8. GANGUBAI RAGHUNATH AYARE v. GANGARAM SAKHARAM DHURI (D) THR. HIS LRS. AND ORS. (Supreme Court Of India, 2025), citing Bachhaj Nahar v Nilima Mandal, (2008) 17 SCC 491.
  9. Venkataramana 2. P. Balaraman 3. C. Krishnamurthy 4. K. Renuka 5. R. Chithra 6. R. Prasanna 7. R. Avinash v. N. Munuswamy Naidu 2. V. Ramyya Chittibabu 3. V. Lokayya 4. Venkatesan 5. V. Ramadhoss S (Madras High Court, 2010).
  10. Dev Infrastructures Pvt. Ltd. v. Jainco Developers Pvt. Ltd. (Delhi High Court, 2015), citing Ramji Dayawala & Sons (P) Ltd. v. Invest Import (1981) 1 SCC 80.
  11. Rm.Al Visalakshi Achi (Died) And Two Others v. Rm. Seenivasan And Three Others S (Madras High Court, 1999).
  12. J.C.S Bahadur v. Kameshwar Singh Bahadur* (Patna High Court, 1952).
  13. Ultra Merchandise & Retails Limited v. Entertainment India Limited (Bombay High Court, 2014).
  14. Makundarao Ganpatrao Wakhle v. Durgaprasad Laxman Bharbhunja (1943 SCC ONLINE MP 44, Madhya Pradesh High Court, 1943).
  15. The Bar Council of Tamilnadu v. V.K.Sethukumar (Madras High Court, 2022).
  16. Prem Lala Nahata And Another v. Chandi Prasad Sikaria . (Supreme Court Of India, 2007).
  17. Manikkan v. Govindaraj (Kerala High Court, 2015), citing Prem Lala Nahata's case.
  18. Alcon Electronics Pvt. Ltd.… v. Celem S.A…. (Bombay High Court, 2014), citing Prem Lala Nahata v. Chandi Prasad Sakaria, (2007) 2 SCC 551.
  19. Ayyappan Chellappan v. Ayyappan Thankappan (Kerala High Court, 1995).
  20. Razia Begum v. Sahebzadi Anwar Begum And Others (1958 AIR SC 886, Supreme Court Of India, 1958).
  21. Udit Narain Singh Malpaharia v. Additional Member Board Of Revenue, Bihar And Another (1962 SCC 0 338, Supreme Court Of India, 1962).
  22. Church Of Christ Charitable Trust & Educational Charitable Society v. Ponniamman Educational Trust (2012 SCC 8 706, Supreme Court Of India, 2012).
  23. Janki Rai And Others v. Maharaja Bahadur Ram Ran Bijaya Prasad Singh . (1939 SCC ONLINE PAT 160, Patna High Court, 1939).
  24. Sobhag Narain Mathur v. Sudarshan Lal & Anr. (Rajasthan High Court, 2007).
  25. Digvijay Singh & Ors. v. Sant Ram & Ors. (Rajasthan High Court, 2013).
  26. Poonam v. Sumit Tanwar . (2010 SCC 4 460, Supreme Court Of India, 2010) - [While this case primarily deals with constitutional law overriding statutory mandates in family law, its underlying principle of adherence to established legal procedures can be noted generally, though its direct relevance to party joinder is limited.]
  27. Umesh Chandra Saha v. Superintendent of E.S.I. Hospital, KAlyani (District Consumer Disputes Redressal Commission, 2015).
  28. Mr. Naresh Shantaram Talvlikar v. M/s Eros Elevators & Escalators (State Consumer Disputes Redressal Commission, 2024).