civil procedure code
Image Source: https://bit.ly/2WZQFhh

This article has been written by Ankit Vaid.

Introduction

Why is this chapter relevant for everyday work of lawyers?

When a suit is filed in the court, the counsel or even the party on whose insistence the suit is filed may not know all the parties involved in the suit. As such, relief cannot be claimed without joining the other affected parties as a plaintiff or defendant (as the case may be). The object underlying this provision i.e Order 1 Rule 10 of the CPC, is to save honest litigants, believing bonafide in the maintainability of their claims, being thrown out on a mere technical ground that the required person(s) were not impleaded in the suit.

It is Order 1 of the Code of Civil Procedure, which deals with parties to the suit. Order 1 Rule 10 of the Code of Civil Procedure (hereinafter referred to as CPC) enables the court to add or substitute 

  1. Any person as a party at any stage of the proceedings
  2. The person whose presence before the court is necessary in order to enable the court effectively and completely adjudicate upon and settle all the questions involved in the suit 

This also enables the court to avoid multiplicity of proceedings.

It is a well-settled principle that it is for the plaintiff in a suit to bring the parties against whom he has any dispute and to implead them as defendants in the suit filed for necessary relief. He cannot be compelled to face litigation with the persons against whom he has no dispute.

However, if any third party is likely to suffer any injustice, on account of the outcome of the suit, he is entitled to get himself impleaded. The question as to whether an individual is a proper or necessary party to a suit would depend upon the nature of relief claimed in the suit and the right or interest projected by the persons, who propose to get themselves impleaded. 

“Dominus litus” is the person to whom a suit belongs. This also means master of a suit. This is the party who has a real interest in the decision of a case. It is this person who will be affected by the decision in a case. This person derives benefits if the judgment is in his favour, or suffers the consequences of an adverse decision. Doctrine of “Dominus litus” is applied to one, who though not originally a party has made himself such, by intervention or otherwise, and has assumed the entire control and responsibility for one side and it is treated by the court as liable for costs and a person who is really and directly interested in the suit as a party. 

The principles governing the power of the court under Order 1, Rule 10 of CPC, are that as a rule, the court should not add a person as a defendant in a suit when the plaintiff is opposed to such addition. The reason is that the plaintiff is the “dominus litus”. He cannot be compelled to fight against a person against whom he does not wish to fight and against whom he does not claim any relief. 

The theory of dominus litus 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. Merely because the plaintiff does not choose to implead a person is not sufficient for rejection of an application for being impleaded. 

The provisions of Order 1 Rule 10(2) CPC, are very wide and the powers of the court are equally extensive. Even without an application to be impleaded as a party, the court may, at any stage of the proceedings order that the name of any party, who ought to have been joined whether as plaintiff or defendant or whose presence before the court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. 

At which stage of the proceeding can a party get impleaded?

There is no requirement of law that an application for impleadment must be made at any particular stage of the trial, though a delay is a cause of consideration for the court to decide whether or not to implead a person as a necessary party. Sub-rule (2) of rule 10 of order 1 provides that the court can add a person or organization as a necessary party at any stage of the proceedings. A second application can also be entertained in proceedings of a suit in changed circumstances.

https://lawsikho.com/course/certificate-course-in-advanced-civil-litigation-practice-procedure-and-drafting
Click Above

Who are the necessary and proper parties to the suit?

There are two types of persons who may be added as a party to the suit. 

Necessary Party

A person is a necessary party when in the absence of whom relief claimed in the suit cannot be granted.  A necessary party is against whom the relief is sought and without whom no effective order cannot be passed.

In Kasturi vs. Uyyamperumal and others (2005) 6 SCC 733, the Hon’ble Apex Court provided two tests that are to be satisfied for determining the question that who amounts to a necessary party:

(i) there must be a right to some relief against such party in respect of the controversies involved in the proceedings,

(ii) no effective decree can be passed in the absence of such a party.

Addition of parties should not be made merely to avoid multiplicity of suits if their presence is not necessary for determining the real question.

If a necessary party is not added, what will happen?

No decree or order can be passed when a person is not impleaded as a necessary party in the suit. Because for an effective adjudication, a party against whom relief sought is not known, no effective decree or order can be issued in the suit. If an effective decree or order cannot be passed, the suit will never conclude to its logical end.

NOTE:- What makes a person a necessary party is not merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness.

Proper Party

Proper parties are those whose presence may be necessary with a view to fully adjudicate upon the matters involved in the suit.

The said power can be exercised in either of the two grounds:

(a) Such person ought to have been joined, either as a plaintiff or as a defendant, but is not so joined; or; 

(b) Without whose presence, the question involved in the suit cannot be decided finally and effectively. 

Why is a person added as a proper party?

A person is added as a proper party so as to decide the suit finally and effectively and also to avoid future litigations. If a party is not impleaded as a proper party, chances are there that after the conclusion of the trial, the said person may approach the court afresh with the grievance that he was not impleaded as a party in the previous suit. So in order to avoid frivolous and multiple litigations, the court usually provides a wide window for impleading all persons concerned with a suit as a proper party.

The only reason which makes it imminent to make a person a party to a suit is so that he can be made bound by the result of the action in a given suit. Therefore, the question to be settled must be a question in the action which cannot be effectually and completely settled unless the person is a party. 

What is the applicability of Order 1 Rule 10 CPC, in different cases?

Impleadment can be made in any legal proceedings initiated before a competent court of law under the relevant provision of CPC. Mentioned below are some specific cases for reference purposes:-

(i) Impleadment in matters relating to public charities/trusts

It is open to a court to add a party as a defendant in a suit under Sec.92 of CPC(Public Charities/trusts) just as in any other suit. Its right to sue is regulated by Order 1, Rule 10 of CPC

(ii) Impleadment in a partition suit

In a suit for partition, the principle of dominus litus is not strictly applicable since the plaintiff and the defendants will be sharers and every party is in the position of the plaintiff.

(iii) Impleadment in specific performance suit

In specific performance suits there are no fixed criteria i.e. where to implead a person as a necessary/proper party. It all depends on the circumstances of the case and the reasonable discretion of the court. 

For example, where the suit property for specific performance of a contract to sell had already been gifted by the owner thereof by registered deed of wakf for religious and charitable purpose and the Muthavalli (trustee of waqf) has also been appointed by the said deed and the wakf board has already taken possession, it was held that both the muthavalli and the board are necessary parties in the suit.

(iv) Whom to implead in an execution petition

Order 1 Rule 10 of CPC, is applicable to suits only. Impleadment provisions of  Order 1 Rule 10 of CPC is not applicable to the execution proceedings. The aggrieved persons, if any will have to proceed Under Order 21 (Execution of decrees), specifically Rule 58 (Adjudication of claims) and  Rule 101 (Questions to be determined by a court in execution of decrees) of CPC.

(v) Impleadment in  special Acts 

Impleading a party is governed by the provisions of Order 1 rule 10 of CPC, which is a general procedure. However, this general procedure would not apply when there is a procedure prescribed in any special enactment. example: the Land Acquisition Act, Law relating to elections, etc.

(vi) Whom to implead if a party is dead

Order 1 rule 10 of CPC does not deal with the substitution of legal representatives of a deceased party. It only confers powers on the court (at any stage of the suit) to implead a person as necessary/proper party. 

It is Order 21 Rule 4 of CPC which confers right on the parties to bring on record the heirs and legal representatives of a deceased person party. If the right to sue does not survive, the suit shall come to an end and shall abate.

What is the difference between Order 1 Rule 10(2) and Order 6 Rule 17 of CPC?

Order 1 Rule 10 of CPC covers two types of cases (a) of a party who ought to have been joined but not joined and is a necessary party, and (b) of a party without whose presence the question involved in the case cannot be completely decided. The object of order 1 Rule 10 of CPC, is to bring before the court all persons at the same time who are involved in the dispute relating to the subject matter so that the disputes may all be determined at the same time without delay, inconvenience and expenses on separate actions and trials. 

On the other hand Order 6 Rule 17 (Amendment of Pleadings) of the Code deals with amendment with the leave of the court by a party of its own pleadings that such amendment is necessary for the determination of the real question in controversy. 

Is transposition of parties allowed?

When a suit is abandoned by the plaintiff (for any reason, with the leave of the court) under Rule 1 of Order 23 of CPC, a defendant can approach the court to transpose himself as a plaintiff under Order 1 Rule 10 of the code. The court shall in considering such application, made due regard to the question whether the applicant (defendant originally) has a substantial merit to be decided against any of the other defendant(s) or not.

In other words, when a plaintiff ceases his rights in any suit and the defendant herein makes an application to the court for placing him (the defendant) in the shoes of the plaintiff, then the court will decide on the merits called by the applicant (defendant) in the application against the rights of the other defendants in the suit.

This is done only to avoid multiplicity of proceedings.

Appeal in matter relating to Order 1 Rule 10 of CPC

Provisions governing the impleadment procedure under Order 1 Rule 10 of CPC are subject to appeal. Any party who is aggrieved after presenting the impleading application under Order 1 Rule 10 of CPC i.e party who get impleaded in the suit and aggrieved of such impleadment or party who has made an application for impleadment but did not succeed in getting the desired party impleaded can appeal to a higher court for such relief.

Opportunity to be heard before being impleaded and impleadment without getting an opportunity to be heard

After filing the application of impleadment for a necessary/proper party by an applicant, the court usually issues a notice to the opposite side for objections if any for impleading the applicant as a necessary/proper party. However, the court may implead the applicant as a necessary/proper party in first go only if the facts and circumstances of the case warrant so. 

For doing this the court has to record its reasons in writing and issue a notice to the opposite side that an ex parte relief has been provided to the applicant by way of impleading the applicant as a necessary/proper party and that the other side may submit their objections in writing and during the course of oral arguments.

Pointers in drafting an Application for impleading a person as  necessary/proper party 

  • An application for impleading a necessary/proper party is always presented before the court in which the original proceedings (in which the applicant wants to get impleaded) are running on a regular basis.
  • An application for impleading party carries all the relevant facts and circumstances which show/prove that the person making such application for impleadment is the necessary/proper party for getting impleaded as a necessary party. All relevant documents supporting the claim of the applicant that he is a necessary party are annexed with the impleading application.

For example, in a suit of possession for immovable property, a tenant may want to get impleaded as a necessary party in the capacity of respondent, although the suit is between two other persons who are claiming their respective possession rights on the disputed immovable property.

  • The applicant has to provide all reasons which can go against him if he does not get impleaded as a necessary/proper party in the proceedings and miscarriage of justice which eventually may cause in the whole proceeding.

Impleadment application: the particulars  to be furnished in serial order

  • An Index containing the list of all material documents in support of the impleading application.
  • Memo of Parties containing the names and particulars of plaintiff and defendants.
  • List of Events and Dates in chronological order.
  • Application for the impleading applicant as proper party along with the affidavit.
  • Metadata, a document prescribed by the court to be filled by every litigant/applicant detailing every particular about the application in it. For example type of application, name and particular of plaintiff and defendants, name of the advocates of both sides, etc.
  • Vakalatnama by the applicant’s advocate.

A sample impleadment application is provided here for reference purposes.

IN THE COURT (Court in which suit is pending)

AT ………[Add Place]

  1. NO._____/201

IN

IN Civil Suit No:-   /201                                                                                 

IN THE MATTER OF:-         PLAINTIFF(s)     V/S DEFENDANT(s)                                    

                                              

IN THE MATTER OF:-                                     INDEX

 

S.NO

PARTICULARS

PAGE NO.

1.    

MEMO OF PARTIES

 

2.    

LIST OF EVENTS & DATES.

 

3.    

Interlocutory Application For Impleading Applicant As Necessary/Proper Party, Along With Affidavit.

 

4.    

ANNEXURE(s):- Provide all  supporting documents as annexures in sequential and chronological order.

 

5.    

METADATA.

 

6.    

VAKALATNAMA

 

 

DATED:-                                                                                 

   FILED BY: –

PLACE:                                                                                           

ADVOCATE

IN THE COURT (Court in which suit is pending)

AT ………[Add Place]

  1. NO._____/201

IN

IN Civil Suit No:-   /201   

                                                                              

IN THE MATTER OF:-         PLAINTIFF(s)     V/S DEFENDANT(s)   

 

                                                                                                              

IN THE MATTER OF: –                            MEMO OF PARTIES 

PLAINTIFF                                    

 

Provide the name and particulars of all plaintiff(s) along with co-plaintiff(s) {if any}

{Particulars include :-Name, (If Minor the name of minor along with the name of the person representing or legal guardian), Age, Parentage , Complete Address where the notice/summons can be issued, Mobile No.}

 

VERSUS

DEFENDANT

Provide the name and particulars of all defendant(s) along with co-defendant(s) {if any}

 

{Particulars include :-Name, (If Minor the name of minor along with the name of the person representing or legal guardian), Age, Parentage , Complete Address where the notice/summons can be issued, Mobile No.}

 

APPLICANT 

 PLACE:-                                                             

 DATED:-                                           

ADVOCATE

  

IN THE COURT (Court in which suit is pending)

AT ………[Add Place]

  1. NO._____/201

IN

IN Civil Suit No:-   /201   

                                                                              

IN THE MATTER OF:-         PLAINTIFF(s)     V/S DEFENDANT(s)   

                                                                                              

IN THE MATTER OF:- LIST OF DATES AND EVENTS

DATED

Events

……../201

Provide a list of all events on which the suit is instituted in the court  in chronological order 

……../201

 

……../201

 

 

APPLICANT 

PLACE:-                                                             

DATED:-                                           

ADVOCATE

IN THE COURT (Court in which suit is pending)

AT ………[Add Place]

  1. NO._____/201

IN

IN Civil Suit No:-   /201                                                                                 

IN THE MATTER OF:-         PLAINTIFF(s)     V/S DEFENDANT(s)                                  IN THE MATTER OF :-Application  seeking impleadment of the following applicant(s) as a necessary/proper party in the civil suit No……….., titled Plaintiff Vs. Defendant  pending disposal before the Learned  Court under Order 1 Rule 10 of the CPC.

MOST RESPECTFULLY SHOWETH:-

The Applicant most respectfully submits as under:

  1.  That the above-mentioned civil suit No……….., titled Plaintiff Vs. Defendant  is pending for disposal before this Learned court .
  2. That the applicant is a  ……………………………………..{provide who the applicant is and why he has not been impleaded in the suit }
  3. Provide all supporting documents in possession of applicant as annexures, that why he is got be impleaded in the present suit.
  4. Provide a separate paragraph for each supporting document annexed as annexures.
  5. Each supporting document as far as possible must be arranged para wise in chronological order.
  6. Irrelevant document and material should be avoided.
  7. The paragraphs should conclude in a sequential and logical conclusion that the applicant was not impleaded as the necessary/proper party to the suit, reason for not impleading him as the necessary/proper party in the suit and injustice that would cause if he does not get impleaded as the necessary/proper party in the suit.
  8. That the right of the applicant will be jeopardized in case the applicant is not impleaded as a necessary/proper party to the suit. As such, the applicant in order to safeguard its rights and interests is approaching this Learned  Court and praying for impleadment as necessary/proper party in order to contest the case for protection of its rights and interests.
  9. That the pendency of the Civil suit No:……… titled Plaintiff  Vs Defendant is affecting the rights of the applicant, as such, the applicant is a proper/necessaryy party in the litigation. The particulars of the applicant praying for its impleadment as necessary/proper party are as under:-
  10. PQR[Name of Applicant], AGE ……YEAR

S/O SH………..

R/O……………

MOBILE NO:…………

An affidavit in support of Application is enclosed herewith

IN THE PREMISES:

It is therefore, most humbly prayed that in view of the submissions made hereinabove, and those to be urged at the time of hearing, the applicant may please be impleaded as necessary/proper party in the above-titled civil suit  in order to put forth its contentions for the just disposal of the case in the interest of justice. 

APPLICANT

  1. PQR, AGE ……YEARS

S/O SH………..

R/O……………….

MOBILE NO:

DATED:

PLACE:                                                      

                                                 THROUGH COUNSEL

    (ADVOCATE)

IN THE COURT (Court in which suit is pending)

AT ………[Add Place]

  1. NO._____/201

IN

IN Civil Suit No:-   /201                                                                                 

IN THE MATTER OF:-         PLAINTIFF(s)     V/S DEFENDANT(s)                                 

IN THE MATTER OF:      AFFIDAVIT IN SUPPORT OF ACCOMPANYING I.A.

I, PQR ; AGE …… YEARS S/O SH. ……. , R/O…….., do hereby solemnly affirm and declare that the accompanying Interlocutory Application has been read over and explained to me and the contents of the para No. _____ to _____ of the IA are true and correct as per my personal knowledge and those of remaining paras ____ to ____ is based on legal advice.

I solemnly swear/affirm that this affidavit is true, no part of this is false and nothing has been concealed.

Place: – 

Dated: – 

DEPONENT

 If you want to read about Res judicata under the Code of Civil Procedure Click Here

Did you find this blog post helpful? Subscribe so that you never miss another post! Just complete this form…

1 COMMENT

  1. Various portions of this blogpost have been verbatim plagiarised from another article (https://districts.ecourts.gov.in/sites/default/files/Impleadment%20of%20third%20parties%20by%20Sri%20Atheeque%20Ahamad.pdf). The original article is also coming up on google search if we type “order 1 rule 10”.

    Therefore, it would be great if the editors do a basic google search based plagiarism check before publishing such blogposts.

    Also, can we not be compelled to provide our email id (if we simply want to pass on a genuine feedback)?

LEAVE A REPLY