MIS-JOINDER AND NON-JOINDER UDER CPC

MIS-JOINDER AND NON-JOINDER

1- Preliminary note:

All the persons who are necessary or proper parties in a suit have rights to join the suit but if a person has been improperly join a suit or has omitted to join than mis-Joinder or non Joinder would not affect the suit or defeat the suit.

2- Mis-Joinder – connotation of:

Joining of person as a party to a suit contrary to the provisions of code of civil procedure is called Mis-Joinder.

3- Non Joinder – connotation of:

The failure join any person to a party to suit whose joining is necessary or proper is called non Joinder.

4- Applicable order:

Order I rule 9, 10, 13 of code of civil procedure 1908

5- Mis-Joinder or non Joinder where not fettle:

2004 CL J 89

Mis-Joinder or non Joinder of any party would be in consequential when it has caused no prejudice to any other party of the suit.

6- Mis-Joinder or non Joinder where fettle:

Where suit requires a person without whose presence relief cannot be granted, Mis-Joinder or non Joinder of such is fettle.

7- Classification of parties as to Mis-Joinder or non-Joinder:

       i- Necessary parties:

Necessary party is that in whose absence no effective decision can be made.

         a- Example:

Partner in partnership

       ii- Proper parties:

Proper party is that whose presence is a matter of convenience to enable a court to adjudicate effectively.

8- Non Joinder of necessary parties:

Non Joinder of necessary party results in the dismissal of suit.

9- Non Joinder of proper parties:

The court will decide the suit in so far as the right of the parties on record is concerned.

10- Remedies for Mis-Joinder or non-Joinder:

                      Order I rule 10

Following are some remedies for Mis-Joinder or non Joinder.

      i- Substitution of parties:

If a suit is instituted in the name of wrong plaintiff the court can substitute the plaintiff.

      ii- Addition of parties:

As a remedy the court may add parties at any stage of the proceedings.

      iii- Striking out parties:

The parties who have no connection what so ever with the relief sought may be trucked out.

11- Amendment of plaint after adding defendant:

When defendant is added the plaint shall be amended.

12- Limitation for added parties:

Sec 22 of limitation act 1908

For added parties suit shall be deemed to be instituted when any party was no made.

13- Objection s to Mis-Joinder or non Joinder:

Rule 13 deals with objection as to the Mis-Joinder or non Joinder shall be taken at earlier possible opportunity which is date of first hearing.