Impleadment Of Parties In Civil Proceedings - Principles [Know The Law]

There is many a time a casual approach to the matter of applications seeking impleadment of third parties in civil proceedings. Such impleadment applications tend to be dealt with frequently without checking the law on the subject and without determining whether the third party can be impleaded or not. The common refrain is, "It is only a joinder application." Impleadment of third parties who are not entitled in law to be impleaded can result in derailment or protection of proceedings. However, the law on impleadment is quite well settled by the Supreme Court in a number of decisions and this piece seeks to enumerate those principles of law. I. GENERAL PRINCIPLES UNDER ORDER 1 RULE 10 OF CPC: Order 1 Rules 9 and 10 of the Code of Civil Procedure, 1908 (CPC) read as under: 9. Misjoinder and non-joinder.- No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it: Provided that nothing in this rule shall apply to non-joinder of a necessary party. 10. Suit in name of wrong plaintiff.- (1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just. (2) Court may strike out or add parties.- The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person 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. (3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent. (4) Where defendant added, plaint to be amended.- Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant. (5) Subject to the provisions of the Indian Limitation Act, 1877 (15 of 1877), Section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons. The general principles of law set out by the Supreme Court in the context of Order 1 Rule 10(2) are enumerated hereinbelow: (1) THE DOMINUS LITUS RULE: The general rule is that the plaintiff is the dominus litus and may choose the persons against whom he wishes to litigate and cannot be forced to sue a person against whom he does not seek any relief. Hence, a person who is not a party has no right to be impleaded against the wishes of the plaintiff unless it is a compulsion of the rule of law.[1] (2) O. 1 R. 10(2), AN EXCEPTION TO DOMINUS LITUS RULE: This general rule of the plaintiff being the dominus litus is subject to the provisions of Order 1 Rule 10(2) of CPC as per which, the Court may, at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that "the name of any person 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." Order 1 Rule 10(2) therefore carves out an exception to the general rule and gives the court the discretion to add as a party a person who ought to have been joined or whose presence is necessary for effectually and completely adjudicating all questions involved in the suit, in other words, a party who is found to be a necessary party or a proper party. It is required to be noted that Order 1 Rule 10(2) does not confer a right upon a non-party to be joined but is about judicial discretion to add a party.[2] (3) COURT'S LIMITED DISCRETION: The discretion of the court under Order 1 Rule 10(2) is limited. It is only if a party is a...

Impleadment Of Parties In Civil Proceedings - Principles [Know The Law]

Amrita Thakore

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