Code of Civil Procedure, 1908 (CPC)
Joinder of Parties and Joinder of Causes of Action Distinguished
A suit has two dimensions. Who is in it is governed by Order I of the Code of Civil Procedure, 1908; what is in it is governed by Order II. Joinder of parties asks when several plaintiffs may sue together or several defendants be sued together; joinder of causes of action asks when several claims may be combined in one suit. The two must be satisfied separately, and a suit that is well framed on one axis may still be badly framed on the other. These notes cover each and the consequences of getting either wrong.
The two axes of a suit, and the rules that govern each
1. Joinder of Parties: Order I
§ Order I Rules 1 and 3, CPC 1908 (in substance) Rule 1: 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. Rule 3: 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, any common question of law or fact would arise. |
§ The two conditions, and the discretions • Both conditions must be satisfied. The same act or transaction, and a common question that would arise if separate suits were brought. Either alone is not enough. • Rules 2 and 3A: separate trials. Where the joinder may embarrass or delay the trial, the court may order separate trials or make such other order as may be expedient. • Rule 8: representative suits. Where numerous persons have the same interest, one or more may sue or defend on behalf of all, with the permission of the court and after notice. • Rule 10: the court's power. It may strike out a party improperly joined, and add any person whose presence is necessary to enable the court effectually and completely to adjudicate upon and settle all the questions involved. |
§ Necessary and proper parties A necessary party is one in whose absence no effective decree can be passed at all. Two tests are applied together: there must be a right to some relief against him in respect of the matter in the suit, and it must be impossible to pass an effective decree without him. A proper party is one whose presence is not essential but who ought to be joined so that the court can completely adjudicate and settle all the questions involved. The consequence of the difference. Under Order I Rule 9, no suit shall be defeated by misjoinder or non-joinder, and the court shall deal with the matter in controversy so far as regards the rights and interests of the parties actually before it, except that the proviso saves the case of a necessary party, whose non-joinder is fatal. |
2. Joinder of Causes of Action: Order II
Rule | What it provides |
|---|---|
Rule 1 | Every suit shall as far as practicable be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them |
Rule 2 | Every suit shall include the whole of the claim the plaintiff is entitled to make in respect of the cause of action; an omitted portion cannot afterwards be sued for, and an omitted relief only with the leave of the court |
Rule 3 | A plaintiff may unite in the same suit several causes of action against the same defendant, or the same defendants jointly; and any plaintiffs having causes of action in which they are jointly interested against the same defendant or defendants jointly may unite them in the same suit |
Rule 4 | No cause of action shall, unless with the leave of the court, be joined with a suit for the RECOVERY OF IMMOVABLE PROPERTY, except claims for mesne profits or arrears of rent, claims for damages for breach of the contract under which the property is held, and claims in which the relief sought is based on the same cause of action |
Rule 5 | No claim by or against an executor, administrator or heir as such shall be joined with claims by or against him personally, unless the latter are alleged to arise with reference to the estate |
Rule 6 | Where the joinder of causes of action may embarrass or delay the trial, the court may order separate trials or make such other order as may be expedient |
Rule 7 | All objections on the ground of misjoinder of causes of action 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 |
3. The Two Compared
Basis | Joinder of parties, Order I | Joinder of causes of action, Order II |
|---|---|---|
The question | Who may be plaintiffs or defendants in one suit? | Which claims may be combined in one suit? |
The test | The same act or transaction, AND a common question of law or fact | Rule 3: the same defendant or the same defendants jointly, with limits in Rules 4 and 5 |
Governing rules | Order I Rules 1, 3, 8, 9 and 10 | Order II Rules 3 to 7 |
The defect | MISJOINDER or NON-JOINDER of parties | MISJOINDER of causes of action, sometimes called multifariousness |
The court's remedy | Rule 10: add or strike out a party at any stage; Rules 2 and 3A: separate trials | Rule 6: separate trials, or such other order as may be expedient |
Waiver of the objection | Not expressly provided, but Section 99 limits the effect of the defect | Rule 7: an objection not taken at the earliest opportunity is DEEMED WAIVED |
Fatal defect | Only the non-joinder of a NECESSARY PARTY | None, in the ordinary case: separate trials answer it |
§ Where the two axes cross Order II Rule 3 is the meeting point. Several plaintiffs may unite several causes of action against several defendants, but only where each plaintiff and each defendant is interested in every cause of action, or where the requirements of Order I are separately satisfied as between them. The practical consequence. A suit in which A sues B on one contract and C sues D on another, with nothing in common, is bad on both axes: the parties are wrongly joined under Order I and the causes of action wrongly united under Order II. The court's answer is rarely dismissal. It orders separate trials, or strikes out a party, so that each dispute is decided in a properly framed proceeding. |
4. What Happens When Joinder Is Wrong
i. Order I Rule 9. No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the court may deal with the matter so far as regards the rights and interests of the parties actually before it; but the proviso saves the non-joinder of a necessary party.
ii. Order II Rule 6. Where the joinder of causes of action may embarrass or delay the trial, the court may order separate trials.
iii. Order II Rule 7. Objections to misjoinder of causes of action must be taken at the earliest opportunity, and are otherwise deemed waived.
iv. Section 99. No decree shall be reversed or substantially varied in appeal on account of any misjoinder or non-joinder of parties or causes of action not affecting the merits or the jurisdiction of the court.
v. The overall effect. Defects of joinder are procedural and curable. Only the absence of a necessary party, which goes to the court's ability to pass an effective decree at all, defeats the suit.
5. Landmark Points
- Order I Rules 1 and 3. Joinder of plaintiffs and defendants requires the same act or transaction and a common question of law or fact.
- Order I Rule 9 with its proviso. Misjoinder and non-joinder do not defeat a suit, except the non-joinder of a necessary party.
- Order I Rule 10(2). The court may at any stage add any person whose presence is necessary to enable it effectually and completely to adjudicate upon all the questions involved.
- Order II Rule 3. Several causes of action may be united against the same defendant or the same defendants jointly.
- Order II Rules 4 and 5. Limits on joining other claims with a suit for recovery of immovable property, and on joining representative and personal claims.
- Order II Rule 7. An objection to misjoinder of causes of action not taken at the earliest opportunity is deemed waived.
- Section 99. Neither defect justifies reversal unless it affected the merits or the jurisdiction.
6. Frequently Asked Questions
What is the difference between joinder of parties and joinder of causes of action?
Joinder of parties, under Order I, asks who may be plaintiffs or defendants in one suit. Joinder of causes of action, under Order II, asks which claims may be combined in one suit. A suit must satisfy both, and they are tested separately.
When may several plaintiffs sue together?
Under Order I Rule 1, where the right to relief arises out of the same act or transaction or series of acts or transactions, and where, if they brought separate suits, a common question of law or fact would arise. Both conditions must be satisfied.
Who is a necessary party?
One in whose absence no effective decree can be passed. Two tests apply together: there must be a right to some relief against him in respect of the matter in the suit, and it must be impossible to pass an effective decree without him. His non-joinder is the one defect that defeats the suit.
What is the effect of misjoinder of parties?
Order I Rule 9 provides that no suit shall be defeated by misjoinder or non-joinder, and the court deals with the matter as regards the parties actually before it. The court may strike out a party under Rule 10, and Section 99 prevents reversal in appeal unless the merits or jurisdiction were affected.
Can objections to misjoinder of causes of action be raised at any time?
No. Order II Rule 7 requires them to be taken at the earliest possible opportunity, and in all cases where issues are settled at or before such settlement. An objection not so taken is deemed to have been waived.
What can be joined with a suit for recovery of immovable property?
Under Order II Rule 4, only claims for mesne profits or arrears of rent in respect of the property, claims for damages for breach of the contract under which it is held, and claims in which the relief sought is based on the same cause of action, unless the court gives leave.
7. Related Topics in This CPC Series
- Parties to Suits under Order I: Joinder and Necessary Parties
- Order II: Frame of Suit and the Bar under Order II Rule 2
- Representative Suit under Order I Rule 8
- Necessary Party and Proper Party under the CPC