Parties to civil Suit Under Civil Procedure Code 1908

 

                                                Lecture-5

Q.  5. What do you mean by plaintiff & defendant? what do you mean by  Performa defendant.

Q 5 (b) what is the difference between a necessary and proper party to a suit. What is the effect of non-joinder of proper parties in a suit.

Q  5(c)what do you mean by joinder and non joinder of parties.

Q 5 (d) what do you mean by misjoinder of parties.

Q 5 (e) Where the plaintiff or defendant is a minor or person of unsound mind statement to that effect.

Q 5 (e)What do you mean by “legal representative” and next friend.

Plaintiff:-

Plaintiff is the person who brings a suit or commences an action against the defendant. It is the plaintiff who approaches a court of law by filing a suit for reliefs claimed in the plaint.

Defendant:-

Defendant is a person against whom a civil suit filed by the plaintiff in the court of law. A defendant is a person against whom relief is claimed by a plaintiff.

Performa Defendant:-

Performa defendant is the person against whom no relief is claimed by the plaintiff.

Legal representative:-

Section 2 (11) of CPC defines legal representative,

Meaning of  “Legal representative” would depends upon the context. Subject to qualification, it includes the following persons:-

(a)             Legatee,

(b)            Properly appointed Executors,

(c)             Succeeding trustee.

(d)            A stranger in possession of deceased judgment debtor’s property without claiming any title from him.

Next friend:- Order 32 Rule 1,

 The next friend is an individual appearing or appointed by a court to act on the behalf of a person lacking legal capacities, such as a child or a person who has been incapacitated due to illness or injury. A minor without, next friend incompetent to file a suit as a plaintiff.

Guardian ad litem:- Order 32, Rule 3.

when some suit is instituted against the minor defendant, the guardian is appointed for such minor defendant and such guardian is called guardian ad litem.

 

Necessary Party:-

There are two tests to decide if one is a necessary party. firstly, there must be a right to some relief against such a party in respect of the matter involved in the proceedings and, secondly, it should not be possible to pass an effective decree in the absence of such party.

Proper party:-

A person is a proper party if his presence  before the court is necessary to enable it to effectively and completely adjudicate upon and settle all the questions involved in the suit. In other words, the expression ‘proper party’ means the party who may be interested in the result of the suit and may have a right to seek the assistance of the court in coming to a decision on the point in issue. However, it is not necessary that any relief should be asked against him, the object of adding him being to avoid needlessly the multiplicity of suit, and to protect his interests or the interests or the interest of a party on record.

Order 1, Rule 10(2), CPC empowers a court at any stage of the proceedings to implead the necessary and proper parties. Necessary parties ‘who ought to have joined that is, parties necessary to the conclusion of a suit without whom no decree at all can be passed, and proper parties are those  whose presence enables the court to adjudicate more effectively and completely ’(State of Assam v. Union of India (2010) 10 SCC 408).

Joinder of Parties:-

Order 1 Rule 1 of CPC “who may be joined as plaintiffs”.

Order1, Rule 1, applies to joinder of plaintiffs and of a cause of action. So several causes of action can be joined in one suit if some common question of law or fact would arise. All persons having a common cause of action are entitled to join as plaintiff.

Order 1, Rule 3, of CPC “who may be joined as defendants”.

The object of Order 1, Rule 3 is to avoid multiplicity suits and needless expenses to the parties it could be avoided without embarrassment to the litigants concerned and the court. In order to justify the joining of more than one person as defendants, it is not obligatory on the part of the plaintiff to show that all the defendants are concerned in all the relief claimed or all the transaction comprised in the suit. It is enough if some common link or nexus is found to satisfy the requisite ingredient as to there being the same act or transaction or series of act or transactions.

Order 1, Rule 9:- Misjoinder and non-joinder  of parties.

Non-joinder of parties:-

Where a person, who is a necessary or proper party to a suit has not been joined as a party to the suit, it is a case of non-joinder  of parties.

Mis-joinder of parties:-

If two or more parties are joined as a plaintiff or defendant in one suit contravention of  Order 1 Rule 1 and 3 respectively and they are neither necessary nor proper party, it is a case of Mis-joinder of parties.

Mis-joinder maybe of three types:

(i)                          Mis-joinder of plaintiffs,

(ii)                       Mis-joinder of defendants,

(iii)                    Mis-joinder of cause of action.

Order 1 Rule 9:- Effect of non-joinder  & misjoinder of necessary parties:-

Proper parties are those persons, whose presence before the court, though not essential, yet it may be proper that they also be present before the court and adjudication on issues and settlement of the dispute is done in their presence. In absence of proper parties, the suit is not defective ad can not be thrown away.

In case of absence of a necessary party, a suit is defective, and if, after the defect has been noticed and time is granted by the court for removal of the defect and for impleading the necessary parties, the same is not done, the suit is defective and may be thrown away.