Joinder, Re-joinder and Misjoinder

Introduction – Joinder, Re-joinder and Misjoinder

Order 1 of the Code of Civil Procedure provides for Joinder and Misjoinder. Whereas Rule 1 deals with joinder of plaintiffs, Rule 3 deals with joinder of defendants. And Rule 9 deals with Misjoinder and Non-Joinder of parties.

Order 8 Rule 9 deals with the Re-joinder of parties which provides for a second pleading by the defendant in reply to replication filed by the plaintiff.

I. Joinder

The joinder of parties may arise either as regards the plaintiffs under Rule 1 or as regards the defendants under Rule 3. Where an act is done by a single individual or adversely affects another single individual, there is no question of joinder of parties. But where an act is done by two or more persons or it adversely affects two or more persons, a question of joinder of plaintiffs or joinder of defendants would arise. Both the rules thus relate to joinder of parties and should be read together.

The rule to allow several plaintiffs or defendants to join in one suit if the following are satisfied-

1. A right to “relief arising out of the same act or transaction or series of acts or transactions;
2. A common question of law and fact.”

It is neither necessary that every plaintiff or defendant should be interested in the entire subject-matter of the suit,[1] nor that all questions arising in the suit must be common to all suits had the plaintiffs brought separate suits.[2] It is sufficient even if one question of law or fact is common.[3] It is not essential that all plaintiffs should have the same or similar cause of action. It is enough if the right arises out of the same act or transactions or series of acts or transactions.

Whereas Order 1 relates to joinder of plaintiffs and defendants (parties to suit), Order 2 relates to joinder of causes of action (frame of suit). Order 2 Rule 3 deals with joinder of causes of action. Both the orders though relate to two different subjects, they are interdependent. A question of parties to suit also involves a question of the cause of action and vice versa. Therefore, both the orders have to be read together.[4]

The simple principle is that a person is made a party in a suit there is a cause of action against him and when causes of action are joined, the parties are also joined.[5]

The word “in respect of the same act or transaction” is wider than the words “in respect of the same cause of action”.[6] So, even where the relief is not claimed on the same cause of action, joinder of plaintiffs may be allowed if such right to relief is based on the same act or transaction.[7] The test of joinder of plaintiffs under Rule 1 is not the identity of the cause of action but the identity of the act or transaction of which the right of relief arises.[8]

In the circumstance of the same act or transaction or series of acts or transactions give rise to the relief of two or more persons severally, they may be joined as plaintiffs in one suit under this rule. But since the provision is an enabling one, and not obligatory, it is open to one or more of such persons to bring separate suits also.[9] And if such separate suits are filed, they cannot be dismissed on the ground that they are not maintainable.[10]

Where a suit is brought against several defendants jointly and the relief against one of the defendants is merely ancillary, the suit is not bad for misjoinder.[11] Thus, where A and B are co-sharers of certain lands, in possession of C and D and A brings a suit against B, C and D claiming relief of ejectment of C and D and partition of his share as against B, the claim against B is merely ancillary to the main relief sought against Ca and D, which cannot be properly worked out without partition of A’s share. Hence, B may be joined as a party defendant.[12]

II. Misjoinder

The “joinder of any person as a party to a suit contrary to the provisions of the code is called misjoinder. Misjoinder may be misjoinder of plaintiffs; misjoinder of defendants and misjoinder of the cause of actions.” Rule 9 states that no suit shall be dismissed by reason of misjoinder or non-joinder of parties and it will be decided on merits.

As a general rule, a suit cannot be dismissed merely on the ground of misjoinder of parties. A defect as to misjoinder of parties (or causes of action) does not affect the jurisdiction of the court, nor it touches the merits of the matter. Normally, a court of law is required to decide the suit on the basis of controversy raised by the parties as regards the rights and interests and not on technicalities, such as misjoinder or non-joinder of parties.[13]

However, all necessary parties must be before the court. In the absence of a necessary party, a suit cannot be decided at all. Hence, if a necessary party is not joined, the defect is not merely a formal one but goes to the root of the matter.[14]

The provisions of Rule 9 are general and apply to all proceedings subject to “any special or local law, or a special form of procedure prescribed by any other law for the time being in force.[15]”

Rule 9 is merely a rule of procedure. it does not affect substantive law. the provisions of Rule 9and 10 seek to give effect to substantive law by laying down procedure. they in no way affect an enforceable right already accrued in favour of the parties under the relevant law in force.[16]

The Full Bench of the High Court of Allahabad in Benares Bank Ltd. v. Bhagwandas,[17] “laid down two tests for determining the question of whether a particular party is a necessary party to the proceeding:

1. There must be a right to some relief against such party in respect of the matter involved in the proceedings in question; and
2. It should not be possible to pass an effective decree in the absence of such a party.”

Udit Narain v. Board of Revenue,[18] is a leading decision on the where certain orders were passed by the Commissioner as well as by the Board of Revenue in favour of X and Y. those orders were challenged by A by filing a petition in the High Court. Though initially X and Y were joined as respondents, their names were struck off.

In an appeal to the supreme court, it was contended that X and Y were not only proper parties but were necessary parties inasmuch as orders were passed in their favour by the authorities. The question before the Apex Court was whether X and Y were necessary parties. The court replied the question in the affirmative and dismissed the appeal in the absence of necessary parties, drawing the distinction between “necessary party” and “proper party”

A necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding.

In Kankarathanammal v. Loganatha Mudaliar,[19] the property in dispute was purchased by the husband in the name of his wife. A suit was filed by a daughter without joining sons (brothers) who were entitled to inherit property along with daughter (sister). Though an objection was raised that brothers were necessary parties, no steps were taken either in the trial court or in the High Court. Even in appeal before the Supreme Court, they were not joined. The matter was then heard by the Supreme Court on merits. At that belated stage, an application to implead brothers was moved.

Rejecting the prayer of impleadment, the court said

“We do not think there is any justification for allowing the appellant to amend her plaint by adding her brothers at this late stage. We have already noticed that the plea of non-joinder had been expressly taken by Respondent No. 1 and 2 in the trial court and a clear and specific issue had been framed in respect of this contention. While the suit was being tried, the appellant might have applied to the trial court to add her brothers, but no such application was made.

Even after the suit was dismissed by the trial court on this ground it does not appear that the appellant moved High Court and prayed that she should be allowed to join her brothers even at the appellate stage, and so, the High Court had no occasion to consider the said point. As no such application was made even to this court until the appeal was allowed to stand over after it was heard. Under the circumstances, we do not think it would be possible for us to entertain the said application.”

Rule 13 enacts that all objections on the ground of misjoinder of parties should be taken at the earliest possible opportunity, otherwise they will be deemed to have been waived.

III. Rejoinder

It is a procedure to allow any party to present a written statement or additional written statement, subsequent to the written statement by a defendant (other than by way of set-off or counter-claim).

The primary object of subsequent pleading is to supply what might have been omitted inadvertently or unintentionally or to deny or clarify the facts stated in the pleading of the opposite party. In case of the fresh cause of action or fresh case not brought out in the previous pleading cannot be brought on record by an additional pleading.[20]

This rule lays down an important rule of pleading that no pleading subsequent to the written statement of a defendant (other than set-off or counter-claim) can be presented without the leave of the court.[21] Such leave need not necessarily be in writing. It may be obtained orally.[22]

Normally, a party intending to file an additional pleading must file an application stating therein the reason why he failed to state certain facts in the original pleading and why he should be allowed to file an additional pleading.[23] The court, on such application should issue notice to the other side and afford an opportunity to oppose the prayer and decide the application by allowing or rejecting the application.[24]

There is no provision in the code under which a party may claim to present additional pleadings as of right. The rule confers a very wide discretion on the court and enables it to accept an additional pleading at any time and upon such terms as it thinks fit.[25]

In State of Rajasthan v. Mohd. Ikbal,[26] the Rajasthan High Court laid down the following principles allowing the plaintiff to file additional pleadings:

1. The plaintiff cannot be allowed to introduce new pleas by way of filing a rejoinder, so as to alter the basis of his plaint.
2. In rejoinder, the plaintiff can be permitted to explain the additional facts which have been incorporated in the written statement.
3. The plaintiff cannot be allowed to come forward with an entirely new case in his rejoinder.
4. The plaintiff cannot be permitted to raise inconsistent plea so as to alter his original cause of action.
5. Application under Order 8 Rule 9 CPC cannot be treated as one under Order 6 Rule 17 CPC as both are contextually different.

An order allowing or rejecting an additional pleading to a plaintiff or defendant cannot be said to be “decree” and therefore not appealable, but the same can be revisable under Section 115 of the Code.[27]

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[1] Mohd. Khalil v. Mahboob Ali, AIR 1942 All 122

[2] Haru Bepari v. Kshitish, AIR 1935 Cal 573

[3] Krishna v. Narsinghrao, AIR 1973 Bom 358

[4] Ishwar Bhai v. Harihar, AIR 1999 SC 1341

[5] Johar Roy v. Premji Bhimji, (1977) 4 SCC 562

[6] Gangi v. Ramaswami, (1902) 25 Mad 736

[7] Labhsang v. Sunam Ram, AIR 1977 HP 23

[8] Shripati Pandu v. Bhau Ganapati, 1978 Mah LJ 345

[9] Basharat v. Harilal, AIR 1932 All 401

[10] Chitui Naga v. Onhen Kuki, AIR 1984 Gau 62

[11] Kamala Prasad v. Chamanlal, (1962) 66 Cal WN 391

[12] Sri Raja Simhadri v. Prattipati Ramayya, (1906) 29 Mad 29

[13] Naba Kumar v. Radhashyam, AIR 1931 PC 229

[14] Adiveppa v. Rachappa, AIR 1948 Bom 211

[15] Madan Lal v. Munshi Datu, AIR 1956 Pepsu 80

[16] Reddy v. Golla Obulamma, AIR 1971 AP 363

[17] AIR 1947 All 18

[18] AIR 1963 SC 786

[19] AIR 1965 SC 271

[20] State of Rajasthan v. Mohd. Ikbal, AIR 1999 Raj 169

[21] Rohan Lal v. Prem Prakash, AIR 1980 Pat 59

[22] Dayananda v. Vatal, (1972) 2 Mys LJ 328

[23] Nanjan v. Selai, AIR 1958 Mad 383

[24] Velji v. Samji, AIR 1952 Kut 27

[25] Kalipada v. Surendra Nath, AIR 1975 Pat 24

[26] AIR 1999 Raj 169

[27] Binda Prasad v. United Bank of India, AIR 1961 Pat 152

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