Non-Joinder and Mis-Joinder of Parties in Indian Civil Procedure
In civil litigation, identifying proper parties is crucial for effective adjudication. The Code of Civil Procedure, 1908 (CPC), under Order I deals with the joinder of parties, and the rules concerning non-joinder and mis-joinder aim to ensure that the right individuals are part of the legal proceedings so that justice is fully served.
Understanding the Concepts
What is Joinder of Parties?
Joinder of parties refers to the inclusion of all persons—plaintiffs or defendants—who are necessary for a complete and just decision in a lawsuit.
What is Non-Joinder?
Non-joinder means omission to include a party whose presence is necessary for the court to effectively and completely adjudicate the matter. Such a person is termed a necessary or proper party.
- Necessary Party: Without whom no effective decree can be passed.
- Proper Party: Not essential but whose presence helps in complete adjudication.
What is Mis-Joinder?
Mis-joinder means wrongly including a party who should not have been added to the suit—either because the party has no cause of action or no legal interest in the dispute.
Legal Provisions Under CPC
- Order I Rule 9 CPC: A suit shall not be defeated by reason of mis-joinder or non-joinder of parties, unless the non-joinder involves a necessary party.
- Order I Rule 10 CPC: Allows the court to add or strike out parties at any stage of the proceeding, either on its own or upon application.
Illustrative Examples
Non-Joinder:
A files a suit for partition of family property but does not include all legal heirs. The absent heirs are necessary parties. The decree will not bind them, and the suit is defective for non-joinder.
Mis-Joinder:
A sues B and C for recovery of money. However, C has no role in the transaction. Including C is a mis-joinder, and the court may remove C from the suit.
Consequences of Non-Joinder and Mis-Joinder
In Case of Non-Joinder:
- If a necessary party is omitted, the entire suit may fail.
- If a proper party is omitted, the suit may still continue, but the judgment may not fully address all aspects.
In Case of Mis-Joinder:
- The court may strike out the mis-joined party under Order I Rule 10(2).
- The suit is not dismissed merely due to mis-joinder unless it causes prejudice.
Power of the Court to Add or Strike Out Parties
Under Order I Rule 10(2), the court has wide discretion to:
- Add any person who ought to have been joined.
- Remove anyone who is improperly joined.
- Ensure complete and effective adjudication of the dispute.
This provision empowers the court to mould proceedings in a way that no relevant interest is left out.
Landmark Case Laws
1. Kasturi v. Iyyamperumal (2005) 6 SCC 733
The Supreme Court clarified the difference between necessary and proper parties and reiterated the importance of complete joinder for complete relief.
2. Razia Begum v. Anwar Begum AIR 1958 SC 886
The apex court ruled that the addition of parties should be governed by the test of interest in the subject matter.
Difference Between Non-Joinder and Mis-Joinder
| Basis | Non-Joinder | Mis-Joinder |
|---|---|---|
| Meaning | Omission of a necessary/proper party | Inclusion of an unnecessary party |
| Effect on Suit | May be fatal (if necessary party) | Not fatal |
| Correction | Court may add the omitted party | Court may remove the extra party |
| Relevant Rule | Order I Rule 9 | Order I Rule 10 |
Practical Importance in Civil Litigation
Ensuring proper joinder of parties is critical because:
- It avoids multiple suits on the same subject.
- Ensures binding decrees on all concerned.
- Helps in speedy and complete resolution of disputes.
- Prevents injustice due to absence of a party.