JOINDER, NON-JOINDER &

MIS-JOINDER OF PARTIES
Necessary and Proper Party

• Question of necessary & proper party always arise when in a

suit there are more than one plaintiff or defendant.

• Necessary Party : A party without whom suit can not decided

effectively and comprehensively and who has legal capacity to
obstruct the execution of decree at later stages.

• Proper Party : A party without whom suit can be decided

effectively and comprehensively and who has no legal capacity
to obstruct the execution of decree at later stages.
• Test to determine whether a party is necessary or proper
• Check Subject matter
• Check COA
• Check matter in issue,
– if all M.I are overlapping with each other – Necessary Party
– If some M.I are overlapping not all – Proper party
– If no M.I overlaps – neither necessary nor proper party.
• Examples :
– Joint owners disposed illegally
– After partition, both owners disposed.
Order 1, Rule 1 : who may be joined as plaintiff.
All persons may be joined in one suit as plaintiffs where—
(a) any right to relief in respect of, or arising out of, the same act or
transaction or series of acts or transactions is alleged to exist in
such persons, whether jointly, severally or in the alternative; and
(b) if such persons brought separate suits, any common question of
law or fact would arise.

A C
B
O.1, R.1 : Joinder of Plaintiff

C A
B
O.1, R.3 : Joinder of Defendant
Joint right, several right or right in alternative

Joint Right
Example : A & B (joint owners) disposed by C.

Several Right
A & B are not joint owners, If they both are dispossessed by C.
they can file case severally against C.

Right in alternative
• A got injured but not sure whether he was hit by B or C.
• Father died. His whole property is being held by His brother.
Deceased’s wife (W) and adopted son (Fs) filed case for
recovery of property. Deceased’s brother raised plea that Fs is
not deceased’s son.
Where it appears to the Court that any joinder of plaintiffs may
embarrass or delay the trial of the suit, the Court may put the
plaintiffs to their election or order separate trials or make such
other order as may be expedient.
• When conditions u/O1, R1 are fulfilled, it is a case of proper
Joinder of parties.
• When conditions u/O1, R1 are not fulfilled, it is a case of Mis-
Joinder of parties.

Order 1 Rule 2 :
In case of proper joinder of parties, Court is of opinion that
joinder may cause delay or embarrass the trial. Court may order
for separate trial.
Order1, Rule 3 : Who may be joined as defendants
All persons may be joined in one suit as defendants where—
(a) any right to relief in respect of, or arising out of, the same act
or transaction or series of acts or transactions alleged to exist
against such persons, whether jointly, severally or in the
alternative; and
(b) if separate suits were brought against such persons, any
common question of law or fact would arise.

Order 1, Rule 3A : Power to order separate trials where joinder of

defendants may embarrass or delay trial
Where it appears to the Court that any joinder of defendants may
embarrass or delay the trial of the suit, the Court may order
separate trials or make such other order as may be expedient in
the interests of justice.
Misjoinder
• Plaintiff joined but O1,R1 not fulfilled.
• Defendant joined but O1, R3 not fulfilled

Non-Joinder
• When necessary or proper party are not joined in a suit.
• Court may pass order for impleadment of party.

 Court on application may strike out or add parties u/O1.R10.

 Mis-joinder or non-joinder of parties shall not defeat any
decree or suit except in case of non-joinder of necessary
party. (Order 1, Rule 9).