This article is written by Yash Gupta who is pursuing a Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting from LawSikho.
Table of Contents
It is Order I Rule 10 of the Code of Civil Procedure, 1908 which deals with the addition of parties in a civil suit. Sometimes the party on whose instructions a civil suit is filed or even the counsel who filed a suit are not aware of all the affected parties. In such a scenario all the affected parties are not impleaded at the outset of the case. Order I Rule 10 cures this frailty and allows the addition of parties to the suit. Therefore Rule 10 controls the parties to the proceedings and their addition or deletion. Wide discretion is vested in the court with regard to impediment of necessary and proper parties to the proceedings. Of course, such discretion has to be exercised in accordance with the provisions of law and the principles enunciated by various judicial pronouncements.
Order I Rule 10
Rule 10 presupposes that the institution of the suit, that is, presentation of the plaint was proper. Thus, where a suit was instituted in the name of A and B, and B had died three days before the date of the presentation of the plaint, the suit cannot be taken to have been instituted by B, as he was dead at the time. A could have instituted the suit alone, and if he had done so it would be properly instituted and on his application B’s legal representatives could be added under this rule.
Sub-rule (1) of Order 10 contemplates cases in which a suit is brought by a plaintiff and he subsequently discovers that he cannot get full relief without joining some other person as co-plaintiff, or, where it is found that some other person, and not the original plaintiff, is entitled to the relief claimed. In the former case, the application, which must be made by the original plaintiff, will be for adding, and in the latter, for substituting that other person as the plaintiff.
However, the court must be satisfied before the application is granted that the amendment has become necessary through a bona fide mistake on the part of the original plaintiff. The mistake may be either one of fact or of law. Where the point is doubtful, this in itself is evidence of a bona fide mistake. Again, where the court of first instance takes one view of the law and the court of appeal takes another, that in itself is evidence of bona fide mistake. It has been observed that the object of this rule is to discourage contests on technical pleas, and to save honest and bona fide claimants from being non-suited. A mistake made foolishly or carelessly but honestly would fall within the ambit of this rule.
In Competition Commission of India v. Steel Authority of India Ltd., [ (2010) 10 SCC 744], the Supreme Court held that Rule 10(1) enables a court to substitute or add a party as plaintiff if it is satisfied that the action was commenced in name of wrong plaintiff by a bona fide mistake. Unless the court is satisfied that the amendment has become necessary because of a bona fide mistake on the part of the original plaintiff it has no power to add a new party.
Necessary conditions to invoke Rule 10(1):
- The suit has been filed in the name of a wrong person as plaintiff by a bona fide mistake.
- The substitution or addition of the plaintiff is necessary for the determination of the real matter in dispute.
Rule 10(2) – Court may strike out or add parties
Under sub-rule (2), the power to strike out as well as to add parties may be exercised at any stage of the proceedings, and even without any application by a party. This rule can be invoked either by a party to the suit or by the court suo moto or by a third party who desires to be added as a party. Mere inaction on the part of a plaintiff to implead a party does not affect the courts power under this sub-rule. In exercise of the power to implead a person suo moto, the court has to see that a collusive decree is not obtained against the real owner or interested owner without impleading him as a party and it does not become final affecting vitally the rights of such a person. The power of the court under this sub-rule is of discretion to be exercised judicially, keeping in mind that one of its objects is to prevent multiplicity of suits and conflict of decisions.
This rule has no application to a statutory tribunal which is not a court and where the concerned Act which sets up the tribunal does not provide for the applicability of the provisions of the Code of Civil Procedure 1908. The provision under rule 10(2) of Order 1 of the Code speaks about the judicial discretion of the court to strike out or add parties at any stage of proceedings. The court can strike out any party who is improperly joined. It can add anyone as a plaintiff or defendant if it finds that he is necessary party or proper party. The court under Rule 10(2) of Order 1 of the Code will act according to reason and fair play and not according to whims and caprice. The plaintiff may choose to implead only those persons as defendants as against whom he wishes to proceed with. However, it is open for the court to add, at any stage of the suit, a necessary party in order to enable the court to effectively and completely adjudicate upon the questions involved in the suit.
Plaintiff as the ‘Dominus Litis’
The plaintiff cannot be compelled to sue a person against whom he does not claim any relief. Doctrine of ‘dominus litis’ is applied to one who though not originally a party has made himself one, by intervention or otherwise, and has assumed the entire control and responsibility for one side and is treated by the court as liable for costs as a person who is really and directly in this suit as a party. The theory of dominus litis, however, should not be overstretched in the matter of impleading of parties because it is the duty of the court to ensure that if for deciding the real matter in dispute, a person is a necessary party, the court can order such person to be impleaded.
It is a settled law that it is open to the court to add any such person as necessary party in the suit to enable the court to effectively adjudicate the question involved in the suit. However, for exercise of power under this rule, the court has to come to a finding that the party is a necessary or proper party. Therefore, the addition of parties would depend upon the judicial discretion which has to be exercised in the facts and circumstances of the case.
In the case of Talib Hussain v. Peer Azhar Hussain, [AIR 1998 Raj 150], the court held that order I Rule 10 of the Code of Civil Procedure, 1908 (“CPC, 1908”) empowers the court to strike out or add parties whose presence before the court may be necessary in order to enable the court to adjudicate upon and settle all the questions involved in the suit effectively and completely. However, in doing so the court must keep in mind that the scope of suit is not enlarged and also the nature of the suit is not changed. It should also not cause any prejudice to either of the parties. It is also imperative that the party sought to be added under the provisions should have a direct interest in the subject-matter of litigation. In every case, the court has got a discretion but it should be exercised in accordance with the well-settled principles of very law of the land.
In Mumbai International Airport Pvt. Ltd v. Regency Convention Centre and Hotels Pvt. Ltd., [2010 AIR SC 3109], the Supreme Court of India held that Order I, Rule 10 of the Code of Civil Procedure, 1908 provides that a court may, at any stage of the proceedings, either upon or even without any application, and on such terms as may appear to it be just, direct that any of the following persons may be added as a party:- (1) any person who ought to have been joined as plaintiff or defendant, but not added; or (2) any person whose presence before the court may be necessary in order to enable the court to effectively and completely adjudicate upon and settle the question involved in the suit. In short, the court has discretion to add as a party, any person who is found to be a necessary party or proper party.
Exception to general rule of impleadment parties
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 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. However, rule 10(2) of Order 1 of the CPC, 1908 provides for impleadment of proper or necessary parties. If a necessary party is not impleaded, the suit itself would be liable to be dismissed. If a person is not found to be a necessary or proper party the court has no jurisdiction to implead him against the wishes of the plaintiff.
In one of the cases, it was also held that addition or substitution of parties may be allowed by the court at any stage of the suit or even at the appellate stage and upon such terms and conditions as it thinks just. (Razia Begum v. Sahebzadi Anwar Begum [AIR 1958 A.P. 195]). No person can be added as a plaintiff without his consent. [Rule 10(3)]
And where any person is added as defendant in the suit, as regards him, the suit shall be deemed to have been instituted from the date he is joined as a party. [Rule 10 (5)]
A necessary party is the one without whom no order can be effectively made. A proper party is the one whose presence is necessary for a complete and final decision of question involved in the proceedings. Addition of the parties would depend upon the judicial discretion which has to be exercised, in view of the facts and circumstances of a particular case. The person to be added as one of the parties must be one whose presence is necessary as a party. What makes a person a necessary party is not merely that he has relevant evidence to give on some of the questions involved, but it should make him a necessary witness. The third-party cannot be considered to be a necessary party for deciding the main issue framed in the suit. Mere ground that inclusion of the proposed third party would not alter the structure of the suit may not entitle any party to ask the court to implead the third party as a defendant.
Transposition of Parties
In transposition, a person who is already on record as a plaintiff or a defendant seeks his transposition from one capacity to another capacity i.e., from plaintiff to defendant or vice versa. Since primary object of Rule 10 of CPC, 1908 is to avoid multiplicity of proceedings, there is no reason why the doctrine of addition or striking out parties does not apply to transferring the parties from one side to another (Saila Bala Dassi v. Nirmala Sundari Dassi AIR [1958 SC 394]). A court can therefore, order transposition of parties in an appropriate case.
It is concluded that the plaintiff is dominus litus and master of his suit. He files his suit against the person against whom he has some sort of claim and he cannot be urged to add a person as defendant if he does not wish to do so. The court will unceasingly take into the account the wishes of the plaintiff before adding third person as a defendant in suit. However, if the court finds that addition of the new defendant is absolutely necessary and cannot be avoided to enable it to adjudicate effectively and completely the matter in controversy between the parties, will it add a person as a defendant even without the consent of the plaintiff.
Mulla: The Code of Civil Procedure, 18th Edition
Civil Procedure Code – C.K Takwani (8th Edition0
MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed
Universal law Series- Code of Civil Procedure
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