UNIT -2

RULE 1........................................................................................................................................................1
GENERAL RULES....................................................................................................................................2
RULE 8........................................................................................................................................................4
REPRESENTATIVE SUIT:......................................................................................................................4
DECREE IN A REPRESENTATIVE SUIT....................................................................................................4
KODIA GOUNDER V. VELANDI GOUNDER:............................................................................................5
RULE 10:...................................................................................................................................................7

Order 1:
PARTIES TO SUIT

Who may be joined as Plaintiff: where there can be joinder of parties.

RULE 1
Relation with o 2, r 3

Relation with s. 11, exp 6:

This order deals with the joinder of parties and to a certain extent with the joinder of causes of
action. O 2 R 3 deals exclusively with the joinder of causes of action. Rule 4 of this order is to be
read with rule 1. There is a world of difference btw the locus and the right of impleadment. The
two cannot be equated. A person having locus may not be denied appearance but a person who is
a necessary party must not be denied impleadment. The former is permissive and the latter is
mandatory.

It may be well to note the general rules relating to the joinder of parties and to the causes of
action. According to CPC, the essential of suits are:

i. Opposite Parties,
ii. Subject in dispute
 iii. Cause of Action
iv. Demand of relief

All these essentials must conquer in every suit properly framed.

Order 1 deals with joinder of parties and Order 2 deals with the framing of the suits.

Joinder of parties v Misjoinder v Non joinder

GENERAL RULES
I. Misjoinder of plaintiffs and Causes of Action: Where in a suit, there are 2 or more
plaintiffs, and 2 or more causes of action, the plaintiffs should be jointly interested in
all the causes of action. If the plaintiffs are not jointly interested in al the causes of
action, the case is one of misjoinder of plaintiffs and causes of action. O2 R3 read
with O1 R1 forbids such a misjoinder. The objection on the ground of misjoinder of
plaintiffs and causes of action should be taken at the earliest available opportunity.
II. Misjoinder of defendant and causes of action: Multifariousness. Where in a suit, there
are two or more defendants and two or more causes of act ion, the suit will be bad for
misjoinder of defendants and causes of action, if different causes of act ion are joined
against different defendants separately (O 2, r 3 and O 1, r 3). Such a misjoinder is
technically called multifariousness. The objection on the ground of multifariousness
should be taken at the earliest opportunity (O 2, r 7). As to the procedure to be
followed in the case of multifariousness, see note to O 2, r 3, Procedure in case of
multifariousness.
III. Non-Joinder of Parties: Where a person is a necessary party to a suit is not joined as
party to the suit, the case is one of the non-joinder. It must be remembered that 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
proceedings.
In case of a non-joinder of a necessary party, the order passed is bad in law. The
objection for non-joinder should be made before the first hearing (O 1, r 13), and the
plaint may be amended adding the omitted party, either as plaintiff or as defendant.
However, it must be borne in mind that no person can be added as a plaintiff, though
 he may be added as defendant, without his consent. Under the present rule several
persons may join as plaintiffs in one suit, though their causes of act ion are separate
and distinct, provided that
(i) the right to relief, alleged to exist in them, arises out of the same act or
transaction or series of acts or transactions; and
(ii) the case is of such a character that, if such persons brought separate suits, any
common question of law or fact would arise.

In the case of Stround v. Lawson, (1898) 2 QB 44, it was held that the both these conditions
must be fulfilled to enable two or more persons to join as plaintiffs in one suit. The two
conditions are not alternative.

Severally: where the right to relief in respect of a same act or transaction is alleged to exist in
two or more persons severally, they may join as plaintiffs in one suit or they may at their option
bring separate suits.

Jointly: If any one of them does not consent to join as plaintiff, he may join as defendant. The
proper course is to ask his consent before doing so and if he refuses consent to join him as
defendant. But the suit should not be dismissed merely because he was joined as defendant
without being called to join as plaintiff.

In Ponnuswami v. Rama Boyan, AIR 1979 Mad 130, it was held that the right of specific
performance under a contract for sale of property entered into by a plaintiff and others, is not
jeopardized only because the others refuse to join with the plaintiff as co-plaintiffs or even refuse
to enforce their right.

Govindanathan v. Anjaneya, AIR 1950 Mad 760

A Hindu dies leaving a widow, an adopted son, and a separate brother and a dispute arises
between the widow and the adopted son on the one hand, and the brother on the other as regards
certain lands. In the dispute, the widow and the adopted son allege that the lands form a part of
the estate of the deceased. The brother, on the other hand, alleges that the lands belong to him. If
a widow does not dispute the adoption, a suit may be brought by her and the adopted son as co-
plaintiffs against the brother to recover the property from him as the plaintiffs are jointly
interested in disproving the defendants title.62 But where the adoption is not admitted by the
widow, and she asks the court to decide the question of adoption as between her and the adopted
son, and prays that, if the adoption is proved, the property may be delivered to the adopted son,
or if not proved, to herself a different situation arises. In such a case, it has been held by the High
Court of Madras, that a suit by the widow and the adopted son as co-plaintiffs to recover the
property from the brother is defective on the ground of misjoinder of plaintiffs, for the plaintiffs
having antagonistic claims. It cannot be said that the right to relief exists jointly in them.

RULE 8
It is an exception to the general rule that all persons interested in a suit ought to be made parties
thereto. The object for which this provision (r 8) is enacted is really to facilitate the decision of
questions in which a large body of persons are interested, without recourse to the ordinary
procedure. In cases where the common right or interest of a community or members of an
association or large sections is involved, there will be insuperable practical difficulty in the
institution of suits under the ordinary procedure, where each individual has to maintain an action
by a separate suit.

REPRESENTATIVE SUIT:
A representative suit is one which is filed by one or more persons under this rule on behalf of
themselves and others having the same interest or a suit allowed to be defended by one or more
persons on behalf of themselves and others having the same interest. The provisions of
explanation VI to s 11 (res judicata) apply to such a suit: Kumaravelu v. Ramaswami, AIR
1933 PC 183. However, if the suit is one under O 1, r 8, the provisions of r 8 must be strictly
complied with; otherwise, a subsequent suit will not be barred.

DECREE IN A REPRESENTATIVE SUIT: The general rule of law is that in suits where one person
is allowed to represent others as defendant in a representative capacity, any decree passed binds
those others only with respect to the property of those others which he can in law represent, and
although the party on record eo-nomine may be made personally liable, no personal decree can
be passed against the others. This is the principle to be applied to suits brought under this rule. It
has accordingly been held that an injunction in a decree passed in a representative suit brought
under this rule, is not binding on those who are not actually parties on the record.
The question about the extent of the binding nature of a decree in a representative suit came up
before a full bench of the Madras High Court in Kodia Gounder v. Velandi Gounder.

KODIA GOUNDER V. VELANDI GOUNDER:

The question has acquired importance after the insertion of new sub-r (6) which lay down that a
decree passed in a suit under this rule shall be binding on all persons on whose behalf or for
whose benefit the suit is instituted or defended, as the case may be. In the instant case, the
plaintiffs as representatives of the ryots of A village filed the suit under this rule against the
defendants for themselves and on behalf of ryots of B villages for a declaration that the ryots of
A village were entitled to irrigate their lands through a particular sluice for two days and for a
permanent injunction restraining the ryots of B village from closing the said sluice for two days
and from otherwise preventing the ryots of A village taking water from the said sluice. The trial
court dismissed the suit but in appeal to the subordinate judge, the suit was decreed. The
plaintiff, then, took out an execution proceedings in which they sought an order for impleading
respondents 4 to 12 as defendants and for an order of attachment of the said respondents
properties and for committing them to civil jail for contempt of court in disobeying the order of
injunction. The respondents contended that the decree could not be executed personally against
them as they were not parties to the suit. The trial court accepted this contention and rejected the
application for execution. In appeal, the subordinate judge held that the decree was executable
against the respondents. That order was reversed in second appeal by a single judge of the High
Court. The plaintiffs thereupon filed a letters patent appeal which was heard by a Full Bench.
The question for determination was whether a decree for injunction obtained in a suit filed
according to the procedure laid down in this rule can be executed against persons who are not eo
nomine parties to the suit or the decree. It is evident from s 11 Explanation VI that a decree in a
representative suit is binding as res judicata on all persons who belong to the class of persons
who are sought to be represented. This is so because Explanation VI in clear terms provides that
where persons litigate bona fide in respect of a public right or in respect of a private right
claimed in common for themselves and others, all persons interested in such a right shall, for the
purpose of this section, be deemed to claim under the persons so litigating. Two things are clear
that

(1) such a decree is binding on the class of persons represented by the eo nomine parties for the
purpose of this section only; and
(2) for those purposes only parties not eo nomine are deemed claiming a common right under the
persons so litigating. Hence, decision on any issue raised in such a suit will, if the same issue is
raised in a subsequent act ion between the same parties, be binding not only on parties but also
on all persons interested in such a right and who are constructively represented in the previous
litigation. Explanation VI creates a fiction under which for the purposes of s 11, ie, for the
purpose of res judicata, persons who are not eo nomine parties but who are represented by the
parties actually on record are deemed to claim the common right under the persons who are
impleaded and are actually on record and not for any other purpose such as the execution. There
are other provisions in the Code such as O 21, rr 16 and 22 and s 146 where under the categories
of persons acting under those provisions can be said to be claiming under the person originally
claiming or holding such a right or claim.

The contentions before the Full Bench, in the instant case, were (i) that the mere fact that such a
decree is binding as res judicata on others who are represented cannot make such a decree
enforceable through execution proceedings or otherwise, and (ii) that non-compliance of such a
decree out of the decree, it is a matter for determination only by the executing court and not by a
separate suit by reason of s 47, Code of Civil Procedure.

The Full Bench relying on sub-r (3) observed that notwithstanding the representative character of
the defendants already on record, the sub-rule permitted any one belonging to the class of
persons who are represented by the defendants as actual parties, to apply to be included as party.
It observed that considering sub-r (2), a party to such a suit is one who is impleaded as a party or
one who on his application is made a party under sub-r (2) (now sub-r (3)), that is, one who is eo
nomine made a party. The others not brought on record are only deemed to be parties but are not
parties as such. Hence, s 47 cannot be a bar to a fresh suit against any such deemed party. The
Madras High Court on this reasoning held that there can be no execution of a decree personally
against persons who are not impleaded as defendants even though they are represented by the
defendants who are eo nomine parties by reason of the procedure in r 8 having been followed. It
follows that in the case of a decree for injunction, persons who are merely deemed to be parties,
but, who are not actually defendants on record cannot be held liable under O 39, r 2A for the
disobedience of the injunction
RULE 10:
Even if the suit is not instituted in the name of the proper person, O 1, r 10 can be resorted to. If
there is a bona fide mistake in describing the plaintiff, the court should set it right and promote
the cause of justice.16 The court, before substituting right plaintiff in place of a wrong person
has to be satisfied that the suit has been instituted through a bona fide mistake and also that it is
necessary for determination of the real matter in controversy.

In the case of Bal Niketan Nursery v Kesari Prasad 1987 Vol 3 SCC 587, an eviction suit is
filed by a recognised school. The suit was instituted by one Dr Om Prakash as the manager of the
school. Besides being the manager, the person instituting the suit was also the secretary of the
society and it can therefore, well be taken that suits have not been instituted by an incompetent
person who is not empowered under the Constitution of the society to file suit on behalf of the
society. In order to promote the cause of justice, the court may allow the amendment of the
plaint. The courts have gone so far as to hold that even if the suits had been instituted in the name
of person who had no competence to file the suit, the court should set right matters by ordering
the additions or substitution of the proper plaintiff for ensuring the due dispensation of justice.

Hughes v Pump House Hotel Company:

A sues B for work done under a contract. B contends that the contract has been assigned by A to
C, and A, therefore, has no right to sue. A admits the assignment, but says that the assignment is
not absolute but by way of charge only, and that he has, therefore, a right to sue. It is found that
the assignment to C is absolute and that there was a bona fide mistake on the part of A in
believing that the assignment was by way of charge only. The plaint may be amended by
substituting C as plaintiff.