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Multifarious Suit – The Mis-joinder of Parties & The Mis-joinder of Causes of Action

Abstract

“A suit is a proceeding by which an individual pursues that remedy that the law affords”1. Generally, a suit is a civil proceeding instituted by the presentation of a plaint2. Opposing parties, cause of action, subject matters and Relief claimed are the four essentials of a suit. Failed to fulfil these essentials is a defect in the suit which may result in the return of plaint or rejection of plain as the case may be. Where there is more than one party interested in the subject matter of a suit and where there is more than one cause of action then all interested parties and causes of action need to be mentioned in the said suit. Law provides the procedure for the joinder of parties and the joinder of causes of action. Non-joinder or the misjoinder of the parties and of the causes of action is a defect called as multifariousness and the suit is called as a multifarious suit. Whether a decree or an order passed in a multifarious suit is valid or not and what should be the process if a suit is multifarious in nature is the subject matter of this research article. This Article deals with the effect of multifarious suits by throwing light on section 99 of the code while elaborating on the concept of proper party and necessary party in the term of joinder of parties.

Key Words

Mis-joinder, mis-joinder of plaintiffs and mis-joinder of defendants, mis-joinder of causes of action, non-joinder of parties, necessary party and proper party.

1Pandurang Ramchandra Mandalik vs Smt. Shantabai Ramchandra Ghatge and Others. (1989) 2 S.C.C. (Supp.) 627

2Code of Civil Procedure, 1908, Section-26 read with Order-IV, Rule 1

Introduction

A multifarious suit is a suit with defects. Such defects are irregular in nature which can be set right by the Court. It is a suit where there are misjoinder of parties and misjoinder of cause of action.

The term multifarious suit has not been used by the Code of Civil Procedure, 1908 (hereafter used as CPC, 1908). However, it has been used in marginal note of section 17, Court Fee Act,1870. Section 17 states that- “Where a suit embraces two or more distinct subjects, the plaint or memorandum of appeal shall be chargeable with the aggregate amount of the fees to which the plaints or memoranda of appeal in suits embracing separately each of such subjects would be liable under this Act”3. In other words, section 17 of Act, 1870 says that a multifarious suit is also chargeable with an aggregate amount of fees.

The term multifarious suit was used for the first time by the Hon’ble High Court of Judicature at Allahabad in the case of Narsingh Das vs Mangal Dubey, 1883, Alld.4 The High Court of Judicature at Allahabad held that “When there is a misjoinder of parties and misjoinder of causes of action then it is a defect, technically called as multifariousness and the suit called as multifarious suit.”

Therefore, multifariousness is a procedural defect of misjoinder of parties under order 1, rule 1, rule 3 and misjoinder of causes of action under order 2, rule 35.

Generally, there are three types of misjoinder–

  1. “Misjoinder of Parties under Order 1, Rule 9 read with Order 1, Rule 1 and Rule 3.
  • Misjoinder of Causes of action under Order 2, Rule 3 read with Order 2, rule 7 and
  • Misjoinder of Parties and Misjoinder of Causes of action, called as Multifariousness”.

The research paper aims to elaborate on these terms with the help of various judicial precedents and to find out the effect of multifariousness in a suit and procedure if the suit is multifarious in nature.

3 Court Fee Act, 1870, Sec-17

4 Narsingh Das v. Mangal Dubey, ILR 5 All 163 (FB) (1882)

5 Code of Civil Procedure, 1908 (Act no. 05 of 1908)

Research Methodology

The research article is of a descriptive nature, based on secondary sources such as websites, journals, newspapers etc for a deep analysis of the concept and effect of the multifarious suit.

Meaning of Misjoinder

The term misjoinder has not been defined by the CPC,1908. However, the Code has used the terms mis-joinder and non-joinder of parties under Order 1, Rule 9 and misjoinder of causes of action under Order 2, Rule 3 respectively.

Merriam-Webster Dictionary defines the term misjoinder as “an improper union of parties or of causes of action in a single legal proceeding”6

In other words, where two or more persons are joined as plaintiff or defendant or where there are several causes of action are joined in a suit that neither arises from a common act or transaction nor is related to a common question of law or facts then such defect or error is termed as misjoinder.

Misjoinder of the Parties

There may be a joinder of plaintiffs or the joinder of defendants in a suit. The CPC,1908 deals with both the joinder of plaintiffs and of defendants7. When an act or transaction is being done by two or more persons or it affects two or more persons then the joinder of such interested parties comes into the picture. For example- “if A assaults B and C or A and B assaults C, the question of the joinder of plaintiffs or defendants arises”.8

The Joinder of Plaintiffs and Joinder of Defendants are given under Order 1, rule 1 and Order 1 rule 3 respectively.

As per Rule 1 and Rule 3,

“All persons may be joined in one suit as plaintiffs or defendants where-

6Merriam-Webster.com Dictionary, Merriam-Webster, https://www.merriam webster.com/dictionary/misjoinder. (Accessed 14 Nov. 2023.)

7 Code of Civil Procedure,1908, Order 1, Rule 1 & Rule 3

8 C.K Takwani Civil Procedure, Limitation and Commercial Courts, 9th Edition.

  1. 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 or against such persons, whether jointly, severally or in the alternative; and
  2. if such persons brought separate suits or separate suit brought against such persons, any common question of law or fact would arise.”9

So, the twin test for the joinder of parties to check whether parties are rightly joined or not is-

  • “There must be the same act or transaction or series of acts or transactions, and
  • There must be a common question of facts or/and law.”10

However, the Joinder of parties to a suit depends upon the court’s discretions.

Order 1, rule 2 and rule 3A provide this discretionary power to the court. As per these rules “where it appears to the court that joinder of parties may embarrass or delay the trial of suit, the court may order for separate trials or such other orders as may expedient in the interest of justice.”11

In Mumbai International Airport Pvt. Ltd. vs Regency Convention Centra and others, 2010, SC12, Hon’ble Supreme Court held that “Since plaintiffs are dominus litus, therefore it is his choice to whom add as a party to the suit. The court cannot compel him to sue a person unless that person is a necessary party.”

Misjoinder of causes of action

The concept of joinder of causes of action in a suit dealt with under Order 2, Rule 3, CPC.1908. This rule enables the joinder of several causes of action in one suit in certain circumstances subject to provisions of Code,1908 i.e., rules 1 and 3 of order 1 and rules 4 and 5 of order 2.13

Order 2, Rule 2 deals with the joinder of whole claims in a suit in one cause of action. However, if there are several causes of actions then rule 3 read with rule 7 of order 2 comes into the picture.

9 Code of Civil Procedure.1908 Order 1, Rule 1 and Rule 2

10 Monghai Bai vs Cooverji Umersey, AIR 1939 PC 170

11 < Order I Code of Civil Procedure |Parties to Suits Rules 1, 2, 3, 3A, 3B| Order 1 CPC 1908 (aaptaxlaw.com)> 12 Mumbai International Airport Pvt. Ltd. Vs. Regency Convention Centre & Hotels Pvt. Ltd. & Ors. AIR 2010, SC 13 Code of Civil Procedure, 1908, Order 2, Rule 3

So, if there are multiple causes of action in an act or transaction or a series of acts or transactions then such causes of action may be joined in one suit under order 2, rule 3.

Joinder of plaintiffs, joinder of defendants and joinder of causes of action must be applied together. So, if there are joinder causes of action arising from one transaction in a suit, then the party should be allowed to join multiple parties to the same suit if causes of action arise from the same transaction and are connected with the same question of facts or law.

Order 2, rule 3(1) states that “Save as otherwise provided, a plaintiff may unite in the same suit several causes of action against the same defendant, or the same defendants jointly; and any plaintiffs having causes of action in which they are jointly interested against the same defendant or the same defendants jointly may unite such causes of action in the same suit.”14

Jointly Interested here means having the same transaction together. Such as contracting together etc.

It has been observed by the court that “Rule 3 of Order 2 must be read with Rules 1 and 3 of Order 1. There are two fundamental principles embodied in Orders 1 and 2, namely-

  1. needless multiplicity of suits should be avoided; and
  1. the trial of suits should not be embarrassed by simultaneous investigation of totally independent and unconnected controversies.”15

By going through order 1 rule 1, rule 3 and order 2, rule 3, it has been observed that in a suit, there may be;

  • “One plaintiff, one defendant and several causes of action, or
  • One plaintiff, several defendants and several causes of action, or
  • Several plaintiffs, one defendant and several causes of action, or
  • Several plaintiffs, several defendants and several causes of action.”16

Misjoinder of causes of action means joining several causes of action arising from different acts or transactions in a suit in which the parties are not jointly interested.

14 Code Civil Procedure, 1908, Order-2, Rule 3(1)

15 Chowdhari Kalyan Chand And Others vs V.R. Dwarkanath And Others, 2006 (1) ALD 583

16 Code Civil Procedure, 1908, Order 1, Rule 1 & 3 read with Order 2 Rule 3

For example-

  • Suppose there are five persons, A, B, C, D and E. They contracted separately with another person Z to supply cotton. Z failed to supply said amount of cotton within the given time.

A, B, C, D and E all together bring up a suit against Z. This suit is a misjoinder of causes of action because plaintiffs are not jointly interested in causes of action against common defendant Z though there are several plaintiffs, common defendants and several causes of action.

  • A contracted separately with seven different salt manufacturing companies to manufacture salt and supply it to A’s factory in Delhi. All seven salt manufacturing companies failed to do so. A put up a single suit against all seven salt manufacturing companies.

Here, A’s suit is not maintainable due to a misjoinder of causes of action and misjoinder of parties because all seven defendants have not entered into a contract jointly.

Although there are several defendants and several causes of action said causes of action do not arise from the same transaction and the defendant is not jointly interested in the subject matter of the plant.

So, if in a suit, there is a misjoinder of plaintiffs or misjoinder of defendant or both and a misjoinder of causes of action then such suit suffered a technical error, a defect called as multifariousness and such suit, therefore, called a multifarious suit.

However, such multifariousness is an irregular defect that can be cured, set right by putting up an application by the party before the same court or in an appeal.

Types of Parties in a Civil Suit

There are generally two types of parties in a civil suit-

  1. Necessary party, and
  • Proper party.

A necessary party is a party against whom the relief is sought, in the absence of whom no decree may pass. The presence of such a party is crucial in the suit for the determination of the case since relief has to be taken from him.

Hon’ble Supreme Court in Deputy Commissioner, Hardoi vs Rama Krishna Narain and Others, 1953, SC laid down two essential tests to determine the necessary party-

  1. “There must be a right to some relief against such a party, and
  1. It is not possible to pass an effective decree in the absence of such a party.”17

Proper party, as observed by Hon’ble Supreme Court in Mumbai International Airport Pvt. Ltd. vs Regency Convention Centra and others, 2010, SC, is one without whom a decree may passed or an order may be made in his absence. In other words, a decree passed in the absence of a proper party is a valid decree but the presence of such a party is needed for complete, effective, adjudication of the suit.18

Effect of Multifariousness in a Suit

In the case of Jankinath vs Ramarunjan, 1879, Cal19, Calcutta High Court observed that “A mere misjoinder or non-joinder of parties or misjoinder of causes of action does not make a suit void unless there is non-joinder of necessary party.”

The provisions related to multifariousness in suit are given under Section 99 read with order 1 rule 9, CPC,1908.

Order 1, Rule 9 states that “No suit shall be defeated by reason of the misjoinder or nonjoinder 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 nonjoinder of a necessary party”20

Section- 99 CPC, 1908 says “No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder 1 [or non-joinder] of parties

17 Deputy Commissioner, Hardoi vs Rama Krishna Narain and Others 1953 AIR 521

18 Mumbai International Airport Pvt. Ltd. vs. Regency Convention Centre & Hotels Pvt. Ltd. & Ors. [2010] INSC 447 (6 July 2010)

19 Janokinath Mookerjee And Another. vs Ramrunjun Chuckerbutty And Others. (1879) ILR 4 Cal 949

20 Code of Civil Procedure,1908, Order-1, Rule 9

or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court:

Provided that nothing in this section shall apply to non-joinder of a necessary party”21

Therefore, the misjoinder or non-joinder or multifariousness in a suit is an irregularity that can be set aright and such irregularities are not enough to declare a suit as void.

However, proviso of section 99 read with proviso of Rule 9 makes it clear that if a defect, or error in a suit is related to a necessary party i.e., if there is a misjoinder or non-joinder of a necessary party in a suit then such suit may be declared void.

Section-99 read with Order 1, rule 9 allows multifarious suits to be recognised even if there is a wrong misjoinder of parties and misjoinder of causes of action. This per se not declared a suit void.

Therefore, a decree passed in multifarious suit is not void. It is valid as per section 99 CPC, 1908, subject to two exceptions-

  1. Such decree must not cause prejudice, or injustice to the party or parties. or
  1. Such multifariousness must not be caused due to the non-joinder of a necessary party.

The procedure followed if a suit is multifarious

The code puts up duty upon the Court to check irregularities in the suit and to set aright the irregularities by the return of plaint under Order 7, rule 1022

According to the proviso of Section 99 read with proviso of Order 1, rule 9, if the Court finds that multifariousness is due to non-joinder or misjoinder of a necessary party then the suit will be declared void.

The party may also put up an application before the court regarding such multifariousness in the suit. The plaintiff may withdraw the cause of action arises from different transactions or may amend the pleading by joining the necessary party as defendants,

21 Code Of Civil Procedure, 1908, Sec-99

22Code of Civil Porcedure,1908, Order 7, Rule 10

However, if in ignorance of multifariousness in a suit, the Court passes a decree or order against the defendant then such decree is covered under section 99 CPC,190823 and unless there is no injustice or non-joinder or misjoinder of a necessary party, such decree is valid.

For exampleA agrees to sell salt to B. C agrees to sell salt to D. They both failed to fulfil their obligation in the sale agreement. B and D jointly sued A and C for breach of contract.

This is a multifarious suit because-

  • Defendants A and C are not jointly interested in the subject matter of the suit.
  • Since there are two different contracts, therefore, transactions are not the same.

Suggestions & Conclusion

“Interest reipublicae ut sit finis litium (It is in the interest of the State that there should be an end to litigation)”24 is a well-known maxim that concerns development. If there is more litigation then there would be more burden on the state and the state would be indulged in the litigation and development may be put up on ignorance. Therefore, the state has to take a balanced approach by protecting the rights of its people to appear before the Court of Justice and the development of the state. Many provisions of CPC, 1908 are based on this principle including res sub-judice, res judicata etc. The doctrine of the joinder of parties and the joinder of causes of action is also based on the same principle. Arrear upon the court put up restrictions in the field of development since it is the court that interprets and guards the civil as well as constitutional rights of the people.

Section-99 CPC, 1908 is based on the basic principle that Rules of Procedure are always handmaids of justice”. Hon’ble Supreme Court through Hon’ble Justice Krishna Iyer observed in the case of State of Punjab and Another vs Shamlal Murari & Anr, 1975, SC25, observed that “We must always remember that processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. It has been wisely observed that procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistance in the administration of justice. Where the non-compliance, tho’ procedural, will thwart fair hearing or prejudice doing of justice to parties, the rule is mandatory. But, grammar apart, if the breach can be corrected without injury to a just disposal of the case, we should not enthrone

23Code of Civil Procedure, 1908, Sec-99

24 Daryao and others v. State of U.P. and others, (1962) 1 SCR 574

25 State Of Punjab And Another vs Shamlal Murari & Anr 1976 AIR 1177, 1976 SCR (2) 82

a regulatory requirement into a dominant desideratum. After, all Courts are to do justice, not to wreck this end product on technicalities.”26

Therefore, a decree must not be vitiated due to multifariousness in the suit because a misjoinder of parties or misjoinder of causes of actions is only a procedural error, which can be set aright by the Court.

26 < The People’s Judge: The Judicial Philosophy of Justice Krishna Iyer (barandbench.com) >

Name- Mohd Musarrat Javed Siddiqui

University- Faculty of Law, University of Allahabad Course- Master of Laws-LL.M

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