Order I Rule 1

1. Who may be joined as 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.

 One common question of law or fact would suffice to invoke O I R 1

Sitaram Aggarwal vs Rajendra Chandra Pal (1955 SCC OnLine Gau 58)

Defendant No. 1 who has been sued for ejectment executed a Kabuliyat in
favour of pro forma Defendant No. 2. The Kabuliyat was for three years.
Plaintiffs claim to be the successors in interest of the original lessor, pro forma
defendant No. 2. Half of the tenancy was transferred by defendant No. 2 to
Pulin Bihari Paul, the predecessor-in-interest of plaintiffs 2, 3 and 4. The other
half was transferred to plaintiff No. 1 who is an uncle of plaintiffs 2 to 4. A
notice of ejectment was sent to defendant to vacate the house as the term of the
lease had expired.

The defendant’s case was that the suit was bad for misjoinder of plaintiffs and
causes of action. The learned Munsiff dismissed the suit on that ground alone
without giving any findings on other issues.

On appeal, the learned Subordinate Judge found that there was no misjoinder of
plaintiffs. The contesting defendant appealed to the High Court.

The Appellate Court while holding that “The requirements of the O I R 1 would
be satisfied if any right to relief arises in favour of the plaintiffs out of the same
act and if any common question of law or fact would arise if separate suits were
instituted. Both these requirements are fulfilled by the suit as laid. It is evident
that the right of all the plaintiffs to the relief claimed in the case arises out of the
same transaction of lease” observed that-

“11… Plaintiffs may have the right to sue separately for any relief they may be
entitled to. But that does not mean that they are precluded from instituting one
suit when the right to the main relief they are asking arises out of the same act
or transaction.”

“13. It is not necessary that all questions of law or fact arising in the case
should be common to two suits if plaintiff co-sharers had instituted separate
suits. If even one question of law or fact common to both suits could arise, there
would be justification for joinder and the requirement of Rule 1 of Order 1
would be satisfied.”

Order I Rule 3

3. Who may be joined as 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 against such persons, any common
question of law or fact would arise.

 O I R 3 r/w O II R 3

Ishwar Bhai C. Patel & Bachu Bhai  vs Harihar Behera (SC, 1999)
“This Rule, to some extent, also deals with the joinder of causes of action
inasmuch as when the plaintiff frames his suit, he impleads persons as
defendants against whom he claims to have a cause of action. Joinder of causes
of action has been provided for in Order 2 Rule 3.
These two provisions, namely, Order 1 Rule 3 and Order 2 Rule 3 if read
together indicate that the question of joinder of parties also involves the joinder
of causes of action. The simple principle is that a person is made a party in a
suit because there is a cause of action against him and when causes of action
are joined, the parties are also joined.
Now, the respondent No.1 in his plaint had pleaded that from his current
account in a bank which was authorised to be operated by his father, namely,
respondent No.2 also, an amount of Rs.7,000/- was lent by a cheque to the
appellant. Since the money had reached in the hands of the appellant, though
not directly through respondent No.1 but via his father, he had a cause of
action against both the defendants, namely, the appellant and respondent No.2
both of whom were, therefore, impleaded as defendants in the suit particularly
as it was one transaction in which both were involved.”
Order I Rule 9

Misjoinder and non-joinder: No suit shall be defeated by reason of misjoinder

or non-joinder of parties. In such cases, the court may deal with the matter in
controversy as regards the rights and interests of the parties actually before it.

Provided that nothing in this rule shall apply to non-joinder of necessary party.

Misjoinder: It is a case where a person, who is not a necessary or a proper

party, has been made a party to the suit.

Non-joinder: It is a case where a person, who is a necessary or a proper party,

has not been made a party to the suit.

 Who is a “Necessary Party” and a “Proper Party”?

Mumbai International Airport (P) Ltd. V. Regency Convention Centre &
Hotels (P) Ltd, 2010 AIR SC 3109-

The Government of India took a policy decision enabling the AAI to lease the
airport premises, to private operators. In pursuance of the said policy, the
Chhatrapati Shivaji International Airport, Mumbai was handed over to the
appellant for operation, maintenance, development and expansion into a world
class airport. The subject matter of the lease was shown in Schedule
I which instead of giving a detailed description of the property, referred to the
map demarcating the premises. The map also contained a note below the list of
carved out assets, reading as under: "A: The parcel of land measuring 31,000
sq.mts. is currently not made a part of the lease deed but may become part of the
premises subject to the court verdict in view of a pending case filed by the first
respondent.”

In pursuance of the lease of the airport in its favour, the appellant claims to have
undertaken several developmental activities to make it a world class airport. The
appellant alleges that it was expecting that the litigation initiated by the first
respondent would end and it would be able to get the said 31,000 sq.m. land
also as it was in dire need of land for developing the airport. As the matter was
taking long, the appellant filed an application seeking impleadment as an
additional defendant in the pending suit filed by the first respondent against
AAI, contending that its interest was likely to be directly affected if any relief is
granted to the first respondent-plaintiff in the suit.

The SC observed that “A 'necessary party' is a person who ought to have been
joined as a party and in whose absence no effective decree could be passed at
all by the Court. If a `necessary party' is not impleaded, the suit itself is liable
to be dismissed. A `proper party' is a party who, though not a necessary party,
is a person whose presence would enable the court to completely, effectively
and adequately adjudicate upon all matters in disputes in the suit, though he
need not be a person in favour of or against whom the decree is to be made.” 

The SC decided that “The fact that if AAI succeeded in the suit, the suit land
may also be leased to the appellant is not sufficient to hold that the appellant has
any right, interest or a semblance of right or interest in the suit property. When
appellant is neither claiming any right or remedy against the first respondent
and when first respondent is not claiming any right or remedy against the
appellant, in a suit for specific performance by the first respondent against AAI,
the appellant cannot be a party. The allegation that the land is crucial for a
premier airport or in public interest, are not relevant to the issue.”

 Effect of Misjoinder and Non-joinder?

Section 99 of CPC provides that “no decree shall be reversed or substantially

valid, 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 proceedings 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.”

Competition Commission Of India vs Steel Authority Of India & Anr, 2010

(10) SCC 744

Jindal Steel & Powers Ltd. provided information to the CCI alleging that M/s.
Steel Authority of India Ltd. (for short `SAIL') had, inter alia, entered into an
exclusive supply agreement with Indian Railways for supply of rails. The SAIL,
thus, was alleged to have abused its dominant position in the market and
deprived others of fair competition. The CCI, without giving an opportunity to
SAIL to file detailed reply, preferred the matter to the Director General for
investigation.

 The legality of this order was questioned before the Tribunal by SAIL on one
hand, while, on the other hand the Commission had pressed its application for
impleadment. The application of the Commission for impleadment was
dismissed, as in the opinion of the Tribunal, the Commission was neither a
necessary nor a proper party in the appellate proceedings before the Tribunal. 

This order was challenged before the SC and the SC observed that “The
Commission, in cases where the inquiry has been initiated by the Commission
suo moto, shall be a necessary party and in all other cases the Commission shall
be a proper party in the proceedings before the Competition Tribunal. The
presence of the Commission before the Tribunal would help in complete
adjudication and effective and expeditious disposal of matters. Being an expert
body, its views would be of appropriate assistance to the Tribunal. Thus, the
Commission in the proceedings before the Tribunal would be a necessary or a
proper party, as the case may be.”

“While non-joinder of necessary parties may prove fatal, the non-joinder of

proper parties may not be fatal to the proceedings, but would certainly
adversely affect interest of justice and complete adjudication of the proceedings
before the appropriate forum.”

Cumulative effect of the above reasoning is that the Commission would be a

necessary and/or a proper party in the proceedings before the Tribunal.

Order I Rule 10

The general rule in regard to impleadment of parties is that the plaintiff in a suit,
being dominus litis, may choose the persons against whom he wishes to litigate
and cannot be compelled to sue a person against whom he does not seek any
relief. Consequently, a person who is not a party has no right to be impleaded
against the wishes of the plaintiff.

But this general rule is subject to the provisions of O1 R10(2) which gives the
court the discretion to add as a party, any person who is found to be a necessary
party or proper party.

 Scope of O I R 10(2): Judicial Discretion

Baluram vs P.Chellathangam & Ors (SC, 2014)

Case of the plaintiff was that K. Jagathees and R. Subbaram Babu acting as
trustees of "Subbaiah Paniker Family Welfare Trust" (for short "the Trust")
entered into the agreement to sell the suit property in favour of the plaintiff. The
price of the property was settled at Rs.22,000/- per cent. A sum of Rs.1 lakh
was received as advance. The plaintiff was ready and willing to perform his part
of the contract but the defendants failed to execute the sale deed even in
extended time. When called upon to do so, they took the stand that the sale deed
could be executed only if the beneficiaries of the Trust agreed to the sale which
was not a valid ground.

During pendency of the suit, the appellant filed an application for being
impleaded as defendant, pleading that he will suffer prejudice being beneficiary
of the Trust if the sale is effected at a throw away price. According to him, the
value of the property was more than Rs.50,000/- per cent while the proposed
sale was for Rs.22,000/- per cent. The trial Court accepted the application.

Aggrieved by the Order of the trial Court, the respondent-plaintiff preferred a

revision petition under Article 227 of the Constitution before the High Court
with the plea that the appellant was not a necessary or proper party and thus the
order of the trial Court impleading him as a party defendant was erroneous. The
High Court upheld the plea of the plaintiff and reversed the order of the Trial
Court.

Aggrieved by the Order of the High Court, the appellant has approached the SC
wherein the SC held that “the High Court erred in interfering with the order of
the trial Court impleading the appellant as a party defendant. Admittedly, the
appellant is a beneficiary of the Trust and under the provisions of the Trusts
Act, the Trustee has to act reasonably in exercise of his right of alienation
under the terms of the trust deed. Appellant cannot thus be treated as a
stranger. …There is no valid reason to decline his prayer to be impleaded as a
party to avoid multiplicity of proceedings. Order I Rule 10(2), CPC enables, the
Court to add a necessary or proper party so as to "effectually and completely
adjudicate upon and settle all the questions involved in the suit."

The SC further observed that-

“22. Let us consider the scope and ambit of Order 1 Rule 10(2) CPC regarding
striking out or adding parties. The said sub-rule is not about the right of a non-
party to be impleaded as a party, but about the judicial discretion of the court
to strike out or add parties at any stage of a proceeding. The discretion under
the sub-rule can be exercised either suo motu or on the application of the
plaintiff or the defendant, or on an application of a person who is not a party to
the suit. The court can strike out any party who is improperly joined. The court
can add anyone as a plaintiff or as a defendant if it finds that he is a necessary
party or proper party. Such deletion or addition can be without any conditions
or subject to such terms as the court deems fit to impose. In exercising its
judicial discretion under Order 1 Rule 10(2) of the Code, the court will of
course act according to reason and fair play and not according to whims and
caprice."
  Rule 1-A of Order XXIII r/w Rule 10 of Order I CPC: Transposition
of Parties

R1-A-“When transposition of defendants as plaintiff may be

permitted: Where a suit is withdrawn or abandoned by a
plaintiff under Rule 1, and a defendant applies to be transposed
as a plaintiff under Rule 10 of Order 1, the Court, shall, in
considering such application, have due regard to the question
whether the applicant has a substantial question to be decided
as against any of the other defendants.”

The transposition of a defendant as plaintiff on an application under O I R 10 is

permitted to be made only in two eventualities.
1. Where a suit is withdrawn by the plaintiff, and
2. When the plaintiff has abandoned the suit.
In doing that also, the Court has to examine whether the applicant has a
substantial question to be decided as against other defendants or not.

R. Dhanasundari @ R. Rajeswari V. A.N. Umakanth & Ors. (SC, 2009)

“10. As per Rule 1-A, in the eventuality of plaintiff withdrawing the suit or
abandoning his claim, a pro forma defendant, who has a substantial question to
be decided against the co-defendant, is entitled to seek his transposition as
plaintiff for determination of such a question against the said co-defendant in
the given suit itself. The very nature of the provisions contained in Rule 1-A
leaves nothing to doubt that the powers of the Court to grant such a prayer for
transposition are very wide and could be exercised for effectual and
comprehensive adjudication of all the matters in controversy in the suit. The
basic requirement for exercise of powers under Rule 1-A would be to examine if
the plaintiff is seeking to withdraw or to abandon his claim under Rule 1 of
Order XXIII and the defendant seeking transposition is having an interest in the
subject-matter of the suit and thereby, a substantial question to be adjudicated
against the other defendant. In such a situation, the pro forma defendant is to
be allowed to continue with the same suit as plaintiff, thereby averting the
likelihood of his right being defeated and also obviating the unnecessary
multiplicity of proceedings.”

 Rule 7 of Order I r/w Rule 10 of Order I CPC

Ms. Kriti Kohli v. Sh. Hari Nand 2012 SCC OnLine Del 2885

Facts: The appellant/plaintiff, Ms. Kriti Kohli, as the proposed buyer and the
respondent/defendant, Mr. Hari Nand as the proposed seller entered into an
agreement to purchase/sell the suit Property. The earnest money was paid. The
appellant/plaintiff pleaded that it transpired subsequently that the
respondent/defendant was not the owner of the suit property and therefore she
asked for return of the advance paid along with interest, which having been
refused the subject suit came to be filed.
The respondent/defendant contested the suit by taking up the basic defence that
the agreement which was entered into was not with the appellant/plaintiff but
with her mother, Smt. Manju Kohli. It was pleaded in the written statement that
the advance money receipt/agreement to sell was materially altered/forged to
change the name of the proposed buyer from Smt. Manju Kohli to that of the
appellant/plaintiff Ms. Kriti Kohli who is the daughter of Smt. Manju Kohli.
The Trial Court dismissed the suit by arriving at a finding that the agreement
was not entered into by the respondent/defendant with the appellant/plaintiff,
but with Smt. Manju Kohli and who was not the plaintiff.
On appeal, the DHC observed that-
The Trial Court has clearly erred in holding that the agreement to sell/advance
money receipt has been forged and fabricated. A reference to this document
shows that no doubt the name of Smt. Manju Kohli has been altered to Ms. Kriti
Kohli, the daughter of Smt. Manju Kohli, however, simply on this ground to
hold that the agreement to sell is forged and fabricated would be a travesty of
justice. Obviously, object of forgery and fabrication is to take an illegal
advantage, however, I do not find any illegal advantage in simply changing the
name of the proposed buyer from Smt. Manju Kohli to Ms. Kriti Kohli.
“8. Another reason to hold that suit was liable to be decreed and not dismissed
is that in terms of Order1 Rule 10(2) CPC, a Court is empowered "at any
stage" (an appeal being continuation of the suit) with or without an application
of either of the parties, to order that the name of a person who ought to have
been joined but was not joined, be added as a party to the suit so as to
effectually and completely adjudicate/settle the questions involved in the suit.
Though Order 1 Rule 7 CPC providing for joinder of defendants in strict sense
is not applicable, and which provides that where plaintiff is in doubt as to the
person from whom he is entitled to obtain redress, then a plaintiff may join two
or more persons as defendants so that the question as to liability of the
defendants or which of them is decided, however when we read the spirit of this
provision with Order 1 Rule 10(2) CPC it becomes clear that even more than
one person can be added as plaintiff when there is a doubt with regard to which
of the plaintiffs has a legal right. In my opinion, therefore the trial Court ought
not to have dismissed the suit on a technical ground that the agreement was
entered into with Smt. Manju Kohli and not with the appellant/plaintiff-Ms.
Kriti Kohli inasmuch as the trial Court should have exercised powers under
Order 1 Rule 10(2) CPC and added Smt. Manju Kohli as the alternate/second
plaintiff in the suit.”
In exercise of my powers under Order 41 Rule 24 CPC, Order 41 Rule 33 CPC
and Order 1 Rule 10(2) CPC, I add Smt. Manju Kohli as plaintiff No. 2 only
and only for holding that either the existing appellant/plaintiff Smt. Kriti Kohli
or her mother, Smt. Manju Kohli would be entitled to the suit amount i.e. a
decree will be passed against the respondent/defendant and amounts under the
same can be recovered either by the existing appellant/plaintiff-Ms. Kriti Kohli
or by her mother-Smt. Manju Kohli.

Order I Rule 13 

All objections on the ground of non-joinder or mis-joinder of parties shall be
taken at the earliest possible opportunity and, in all cases where issue 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.

Beharilal & Anr. Vs.  Smt. Bhuri Devi & Ors., (1997) 2 SCC 279
“Though the respondent has pleaded in the written statement the non-joinder of
necessary parties and an issue was raised, the trial Court had negatived it and
the same was reiterated and argued before the learned single Judge. The
learned single Judge also has held that though the Government may be a
proper party to the suit, but since claim for possession is not being sought for
against the Government or Mandi they are not necessary parties. The decree
for possession granted by the trial Court may not bind the Government on the
ground. However, the omission to implead the Government or the Mandi
Committee as a co-defendant is not vitiated by Order 1, Rule 13, CPC.
Therefore, the suit need not be dismissed on the ground of their nonjoinder. As
seen, these findings were allowed to become final, since that aspect of the
matter was not argued before the Division Bench. The respondent waived that
objection before the Division Bench. Thus, it is not open to the appellants to
raise that objection in this appeal. It is accordingly rejected.”

Ukha Chamatya Bhil v. Chatursingh Bilji Bhil, 2008 SCC OnLine Bom 616 :
(2008) 6 Mah LJ 195
Ground of objection though was available to the defendants from the very
inception was raised after evidence of the plaintiff was over without any
justification as to why the said objection could not be raised earlier — Held, the
said objection would have to be taken as deemed to have been waived — Order
allowing the objection set aside.