Impleadment of parties in civil litigation
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This article is written by Sukeerti K G, pursuing a Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting from LawSikho.

Introduction

To implead means to prosecute. Impleadment of parties refers to bringing a new party into an existing suit, because the person is liable to the impleading party for all or part of the claim against the party. Sometimes, after instituting a suit, certain alterations may be required so as to decide upon a dispute in an effective manner and to ensure justice. This may require the court to add, substitute or remove a party to a suit which is explained in Order I Rule 10 of the Code of Civil Procedure, 1908. 

A suit in the name of a wrong person 

The Code of Civil Procedure empowers the court, at any stage of the suit, to substitute or add the Plaintiff. This is done when the suit is instituted in the name of the wrong person as plaintiff or it is doubtful whether it has been instituted in the name of the right plaintiff. Thus, the court in order to decide the real matter in dispute can add or substitute the plaintiff. 

Sometimes, the plaintiff realises later that the relief he claimed cannot be sought without joining some other parties as plaintiff or the court determines that the plaintiff is not the proper person who is entitled to the relief in the suit. This rule saves honest plaintiffs believing bonafide in the maintainability of their claims being non-suited on a mere technical ground.

Some examples to explain the aforementioned rule are discussed herein below:- 

  • C, an agent of A, files a suit against B in his own name. The court can substitute the agent for the principal, and make A the plaintiff, if the mistake is bonafide.
  • A receives a gift deed from B who later dies. The gift-land lies in the possession of one F. A files a suit for recovery of the land from F. During the suit it is found that the gift deed is allotted to one X and he is lawfully entitled to the land. The court can substitute A with the person who is actually the claimant, that is X in this case. 
  • A sues B for possession of a house. B claims that since A had transferred the house to C, A has no locus standi. So, A requests the court to add C as an additional plaintiff. The acts of A are not bonafide thus his request would not be allowed. 

Can one strike out or add parties?

The court has powers to strike out the names of parties who are improperly joined and include the name of parties who ought to have been joined. This power can be exercised suo moto or on the application of the parties. The court must be satisfied that the parties are improperly joined (striking out the name of parties) or that addition of the parties is essential for deciding the case in an effective and complete manner. 

This is to ensure that all the parties who are essential to the suit are added, so the court can decide the dispute finally and completely. Not every party involved is required to be added as a party to the suit. The parties present must be so important that without them, the question in the suit cannot be completely decided. This prevents multiplicity of suits. The court also has powers to make certain terms upon which the striking out or adding of the parties can be effectuated. The wide powers which are granted by the Code, must be used judiciously by the court. 

What does the Principle of Dominus Litmus say?

The court while exercising its discretion to strike out or adding parties must take into the consideration of the rule of dominus litus. The plaintiff is the best judge of his interests. It is therefore his choice if he chooses the person he wants to sue. It is not the province of the court to interfere with the right. However, it is also the duty of the court to ensure justice. If the court feels that it is necessary to add a party as a defendant, so as to decide the case in toto, the court can exercise its power and make the changes. The court thus needs to see whether the party is a necessary party or a proper party to a suit to enable the court to effectively adjudicate the question involved in the suit. 

Proper party and necessary party

  • A necessary party is an indispensable person to a suit. An effective order cannot be passed without his presence as the relief would affect the rights of such a person. A proper party is a person in whose absence an effective order can be passed, but his presence as a party would assist and help the court to adjudicate effectively and completely. In simple words, without a necessary party a decree cannot be passed, while in absence of a proper party a decree can be passed so far that it relates to the parties in dispute.  
  • Example: In a partition suit all the sharers are considered as necessary. Similarly, a person who has participated and won the property in a public auction is a necessary party to a suit for a declaration to set aside the public auction. Relief claimed against a specific person would render him as a necessary party. A suit can be dismissed on the ground that a necessary party has not been joined. 
  • Proper Party – A sub-tenant is considered as a proper party in a suit for possession by the landlord. Exception : If numerous persons are interested in a suit, the suit may be tried by one person who acts on behalf of other persons having the same interest as per Order 1 Rule 8 of the Code. 

Throwing light upon 2 important case laws:

Razia Begum v. Sahebzadi Anwar Begum

In a suit for declaration one lady, A, sought for the court to declare that she was the legally wedded wife of J and thus her husband’s property would be inherited by her. One B claimed that she is also another legally wedded wife of J, and sought to be added as a Defendant. The request of B was granted, as the declaration would determine the status of marriage and legitimacy of children, which would affect generations to come. And the relief claimed by A would directly affect the intervener, B, in the enjoyment of her rights. Thus, the test is whether the relief claimed by the Plaintiff will directly interfere with the rights of the intervener and not whether the Plaintiff consents to the Joinder.

Queen’s Bench Division in Amon v. Raphael Tuck & Sons Ltd.  

The learned Judge Delvin J held that ‘it was not enough that the intervener was commercially or indirectly interested, he must be directly or legally interested.’ A person is legally interested in the question involved in the suit, only if he can say that it may lead to a result that may affect him legally, that is, by curtailing his legal rights.

What is meant by persons under disability?

The consent of a disabled person is compulsory to add a person as plaintiff who is suing as the next friend of the disabled person. This is to ensure that the disabled person is in agreement with the person who acts as his next friend. It takes into account the wishes of the disabled person and his needs are well attended and understood by a person who keeps into mind the best interest of the disabled person. No person can be added as a plaintiff without his consent.  

How to amend the plaint?

The principle of natural justice is to be followed in all the cases and the code is enacted so as to imbibe the principle in an effective manner. No man shall be condemned unheard. Thus, when a new person is added as a defendant, the plaint must be amended accordingly. The summons containing the amended copies of the plaint must be served on the new defendant and if necessary, on the original defendant too. The person to be added as a defendant is subject to the definition given under Limitation Act and the corresponding limitation begins only after the service of the summons to the person sought to be included as a defendant. 

Existence of a limitation period

The limitation against the added or substituted defendant shall be deemed to be commenced only after the summons is effected. This is in accordance with the principle of audi alteram partem. 

What happens in the case of grievances of parties?

This rule is an amendment to Order I Rule 10. If the court feels necessary that its decision to add, substitute, or strike out any party in a suit would affect the interest of such party, it may request the pleader to address the concerns of the parties, and if the party is not represented by pleaders, the court may hear the concerns from the parties directly. 

Non-joinder of a necessary party is a ground for dismissing a suit. It would result in the wastage of precious judicial time. The amendment facilitated the court to directly hear the concerns of the parties, so that there is no future dispute which may arise due to non-joinder or mis-joinder of parties. Any objection to the joinder or non-joinder of parties must be expressed in the first instance itself. 

Transposing of parties

Transposition means to change the capacity of parties from plaintiff to defendant and vice-versa. Since the primary object of this Order I, Rule 10 is to prevent multiplicity of the proceedings, there is no reason why the existing parties can be transposed. This can be exercised Suo moto or on the application of the parties. But the court cannot order a transposition which affects the nature of suit or causes any prejudice to the opposite party. 

Suit for specific performance

Sumtibai v. Paras Finance Company. Reg. Partnership Firm AIR 2007 SC 3166

Katju J held that where the defendant died and his legal representatives were prima facie found to be co-owners of the property in dispute, it was held by the Supreme Court of India that they were entitled to file defense by way of additional written statement. He also opined that whenever a suit for specific performance is filed by A against B, a third-party C cannot be said to be never impleaded. If C can show a fair semblance of title or interest, he can file an application for impleadment. To consider a contrary view, it would lead to multiplicity of proceedings and C would have to wait for a degree to be passed against B, and then file a suit for cancellation of the decree on the ground that A had no title in the property in dispute. Clearly, such a view cannot be countenanced. 

Vimala Ammal v. C. Suseela, AIR 1991 Mad 209 (Mulla, 2020)

On deciding who ought to have been joined as a party,  Madras High Court opined that in a suit for specific performance of sale, a subsequent purchaser is a necessary party and without him being made as a party to a suit 

  1. The decree is a nullity;
  2. The title would remain with the subsequent purchaser; 
  3. He cannot be dispossessed under the decree.

The owner of the property is not a free owner of the property, and thus the sale is subject to the conditions agreed in the specific performance. 

Sidharth Kumar Moch v. Jugjit Singh Bindra, AIR 1984 Del 116

In a suit for dissolution of a firm and rendition of accounts, the creditor of the firm cannot be impleaded. He is neither a necessary nor a proper party.

Conclusion

The purpose of Order I, Rule 10 is to reduce the burden of courts by preventing multiplicity of suits. Not only is the court’s burden reduced by adding, substituting or removing the parties, the court also adjudicates in a complete and proper manner which benefits the parties in a suit. The court has wide powers to add or remove parties and it must apply its mind and act judiciously. An order to add or remove or substitute parties is a preliminary order which affects the rights of the parties and thus they are subject to appeal. If there is a bonafide mistake in leaving out a necessary party, the party must first approach the court and make an application for the court to consider. Parties must be vigilant and any objections to add, substitute or remove parties must be made at first instance. If used in the rightful circumstances the dispute can be decided in a beneficial manner to litigants and save time of court. 

References

 

  • Mulla, Sir Dinshaw Fardunji 2020, Code of Civil Procedure, Lexis Nexis, 17th edition, 2020. 
  • C K Takwani, Code of Civil Procedure, Eastern Book Explorer, Eighth Edition.

 


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