Code of Civil Procedure, 1908 (CPC)
Misjoinder and Non-Joinder of Parties under Order I CPC: Effects and Objections
Plaintiffs make mistakes about who should be in a suit. They join people who have no business being there, and they leave out people who ought to be there. Order I Rules 9 and 13 of the Code of Civil Procedure, 1908 decide what follows, and the answer is deliberately forgiving: no suit shall be defeated by reason of misjoinder or non-joinder of parties, with one exception that swallows a good deal of the examination literature, the non-joinder of a necessary party. These notes set out both defects, their effects, and the discipline of timing that governs objections.
1. The Two Defects Defined
§ Misjoinder and non-joinder Four terms recur, and they should be kept apart: • Misjoinder of parties: a person has been joined as plaintiff or defendant who ought not to have been joined, because the conditions of Order I Rules 1 and 3 are not satisfied as regards him. • Non-joinder of parties: a person who ought to have been joined as plaintiff or defendant has been left out. • Multifariousness: the joining together, in one suit, of distinct causes of action against different defendants, or by different plaintiffs, so that the suit contains several suits rolled into one. This is misjoinder of parties combined with misjoinder of causes of action. • Misjoinder of causes of action: the improper joining of causes of action, governed by Order II rather than Order I, though it often travels with misjoinder of parties. |
2. Order I Rule 9: The General Rule and Its One Exception
§ Order I Rule 9, CPC 1908 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. Provided that nothing in this rule shall apply to non-joinder of a necessary party. |
The rule states a policy: defects in the array of parties are procedural irregularities, not defects of jurisdiction, and a litigant should not lose on the merits because of them. The court is directed to decide the controversy so far as concerns those actually before it. The proviso, inserted by the Amendment Act of 1976, codified what the courts had long held: the general indulgence cannot extend to the non-joinder of a necessary party, because in that case there is nothing the court can effectively decide. The proviso does not itself make the suit void; it removes the protection of Rule 9, leaving the ordinary consequence, that a suit which cannot result in an effective decree is liable to be dismissed.
3. Effect of Non-Joinder of a Necessary Party
The consequences are best stated as a sequence, because a good answer shows that dismissal is the last step and not the first.
i. The court first considers addition. Under Order I Rule 10(2) the court may, at any stage and even of its own motion, add the necessary party. Where the defect is pointed out in time, addition, not dismissal, is the normal course, and the court should ordinarily give the plaintiff the opportunity to implead.
ii. If the party is not added, the suit is liable to be dismissed. Since no effective decree can be passed in the absence of a necessary party, the suit fails, though the dismissal is for want of an effective decree and not for want of jurisdiction.
iii. The decree does not bind the absent party. A person not on the record is not bound by the decree, save where he claims under a party or is represented under Order I Rule 8 or Explanation VI to Section 11. This is the reason the defect matters at all.
iv. Limitation may intervene. If the necessary party is added after limitation has run, Order I Rule 10(5) and Section 21 of the Limitation Act, 1963 treat the suit as instituted against him on the date he was made a party, unless the omission was due to a mistake made in good faith and the court directs otherwise.
v. The defect is not one of jurisdiction. Non-joinder does not make the decree a nullity in the sense of Kiran Singh; it makes the suit liable to fail, and an unchallenged decree passed despite the defect is not void for want of jurisdiction.
4. Effect of Misjoinder
Misjoinder is the lesser defect, and Rule 9 covers it without exception. Four consequences follow. The suit is not defeated: the court proceeds to decide the controversy as regards the parties properly before it. The misjoined party may be struck out under Order I Rule 10(2), at any stage, on application or suo motu. Where joinder embarrasses or delays the trial, the court may under Rule 2 put the plaintiff to his election or order separate trials, and under Rule 3A may order separate trials where joinder of causes of action would produce the same difficulty. And by Section 99 of the Code, no decree shall be reversed or substantially varied, nor any case remanded, in appeal on account of any misjoinder or non-joinder of parties not affecting the merits of the case or the jurisdiction of the court, the section itself carving out non-joinder of a necessary party.
§ Section 99 CPC: the appellate safeguard 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 proceeding in the suit, not affecting the merits of the case or the jurisdiction of the Court. Provided that nothing in this section shall apply to non-joinder of a necessary party. Section 99 is the appellate counterpart of Order I Rule 9, and the two proviso clauses are identical in effect: everything is forgiven on appeal except the absence of a necessary party or a defect touching the merits or jurisdiction. |
5. Objections to Misjoinder and Non-Joinder: Order I Rule 13
§ Order I Rule 13, CPC 1908 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. |
Rule 13 imposes the same discipline the Code applies to objections as to the place of suing under Section 21: raise it early or lose it. Three points follow. The objection must be taken at the earliest possible opportunity, and in any case at or before the settlement of issues, so that the defect can be cured while the suit is young and the plaintiff can implead without the bar of limitation. The rule expressly saves objections whose ground arises later, as where a necessary party's interest comes into existence during the suit. And an objection not so taken is deemed to have been waived, so an appellant who kept the point in reserve cannot deploy it for the first time in appeal.
§ Does Rule 13 waive the non-joinder of a necessary party too? This is the fine point examiners set. Rule 13 is framed generally and speaks of all objections on the ground of non-joinder or misjoinder, so a party who fails to take the objection in time cannot ordinarily raise it later, and the appellate court will not entertain it. But the court's own inability to pass an effective decree is not a matter of waiver between the parties. Where the absence of a necessary party means that no effective relief can be granted at all, the difficulty confronts the court at the stage of decree, whoever raised it and whenever. The practical reconciliation is this: waiver under Rule 13 bars the objection as a ground of attack in appeal, but it cannot supply the court with a power to pass a decree that would be inert or would bind a person never before it. In an answer, state the general rule of waiver first, then note this qualification: it shows command of both Rule 13 and the proviso to Rule 9. |
6. Misjoinder and Non-Joinder Compared
Basis | Misjoinder of parties | Non-joinder of parties |
|---|---|---|
Meaning | A person has been joined who ought not to have been joined | A person who ought to have been joined has been left out |
Governing rule | Order I Rule 9, main provision; Rules 2 and 3A for separate trials | Order I Rule 9 with its proviso; Order I Rule 10(2) for addition |
Effect on the suit | The suit is not defeated; the misjoined party may be struck out | Not fatal for a proper party; fatal for a necessary party, whose absence prevents an effective decree |
Cure | Striking out under Order I Rule 10(2); separate trials under Rules 2 and 3A | Addition under Order I Rule 10(2), subject to limitation under Section 21 of the Limitation Act |
In appeal | Section 99: no reversal or remand unless the merits or jurisdiction are affected | Section 99 applies, save for non-joinder of a necessary party, which its proviso excludes |
Objection | Order I Rule 13: at the earliest opportunity, at or before settlement of issues, else deemed waived | Same discipline under Order I Rule 13 |
7. Landmark Judgments on Misjoinder and Non-Joinder
- Prem Lal Nahata v. Chandi Prasad Sikaria, (2007) 2 SCC 551. The Code is exhaustive on joinder and misjoinder; the consequences are those the Code prescribes, and misjoinder not affecting jurisdiction or the merits does not vitiate a decree.
- Udit Narain Singh Malpaharia v. Board of Revenue, AIR 1963 SC 786. Non-joinder of a person whose rights are directly affected is fatal to the proceeding.
- Kasturi v. Iyyamperumal, (2005) 6 SCC 733. Who is and is not a necessary or proper party, and hence when non-joinder matters at all.
- Order I Rules 9, 10 and 13, with Section 99 CPC and Section 21 of the Limitation Act, 1963. The complete statutory scheme for defects in the array of parties.
8. Frequently Asked Questions on Misjoinder and Non-Joinder
What is misjoinder of parties?
The joining in a suit of a person who ought not to have been joined as plaintiff or defendant, because the conditions of Order I Rules 1 and 3 are not satisfied as regards him. The suit is not defeated; the party may be struck out under Order I Rule 10(2).
What is non-joinder of parties?
The omission of a person who ought to have been joined as a plaintiff or defendant. Non-joinder of a proper party does not defeat the suit; non-joinder of a necessary party is excepted from Order I Rule 9 by its proviso and is fatal.
What is the effect of non-joinder of a necessary party?
The court will ordinarily first allow the party to be added under Order I Rule 10(2). If he is not added, the suit is liable to be dismissed, because no effective decree can be passed in his absence, and any decree passed would not bind him. The defect is not one of jurisdiction, so the decree is not a nullity in the Kiran Singh sense.
Does misjoinder or non-joinder defeat a suit?
Order I Rule 9 provides that no suit shall be defeated by reason of misjoinder or non-joinder of parties, and the court shall deal with the controversy as regards the parties before it. The sole exception, in the proviso, is the non-joinder of a necessary party.
When must an objection as to misjoinder or non-joinder be taken?
At the earliest possible opportunity and, in all cases where issues are settled, at or before their settlement, unless the ground of objection arose later. Under Order I Rule 13, an objection not so taken is deemed to have been waived.
Can a decree be reversed in appeal for misjoinder of parties?
Not ordinarily. Section 99 of the CPC provides that no decree shall be reversed or substantially varied, nor any case remanded, on account of misjoinder or non-joinder of parties or causes of action not affecting the merits or the jurisdiction of the court, the proviso excepting the non-joinder of a necessary party.
What is multifariousness in a civil suit?
The joining in one suit of distinct causes of action against different defendants or by different plaintiffs, so that several suits are rolled into one. It combines misjoinder of parties with misjoinder of causes of action, and the court may order separate trials under Order I Rules 2 and 3A.
9. Related Topics in This CPC Series
- Necessary Party and Proper Party under the CPC
- Parties to Suits under Order I: Joinder, Impleadment and Representative Suits
- Institution of a Civil Suit: Section 26 and the Cause of Action
- Jurisdiction of Civil Courts: Section 9, Types and Section 21