Explain the term “Non-joinder or Misjoinder of Parties”.

Question: Explain the term “Non-joinder or Misjoinder of Parties”. [Raj. J.S. 1969, UPCJ, 2018]

Find the answer to the mains question only on Legal Bites. [Explain the term “Non-joinder or Misjoinder of Parties”.]

Answer

Where a person, who is a necessary or proper party to a suit has not been joined as a party to the suit, it is a case of non-joinder. Conversely, if two or more persons are joined as plaintiffs or defendants in one suit in contravention of Order 1 Rules 1 and 3 respectively and they are neither necessary nor proper parties, it is a case of misjoinder of parties.

The general rule is that a suit cannot be dismissed only on the ground of non-joinder or misjoinder of parties (Order 1 Rule 9). Nor a decree passed by a competent court on merits will be set aside on the ground of misdescription of the defendant. However, this rule does not apply in the case of the non-joinder of a necessary party. (proviso to rule 9) If the person who is likely to be affected by the decree is not joined as a party in the suit or appeal, the suit or appeal is liable to be dismissed on that ground alone.

But in B. Prabhakar Rao v. State of A.P, [1985 SCC Supl 432], where all the affected persons had not been joined as parties to the petition, and some of them only were joined, the Supreme Court took the view that the interests of the persons who were not joined as parties were identical with those persons who were before the court and were sufficiently and well represented and, therefore, the petition was not liable to be dismissed on that ground.

Similarly, no decree or order under Section 47 of the Code can be reversed or substantially varied in appeal, inter alia, on account of any misjoinder or non-joinder of parties, not affecting the merits of the case or the jurisdiction of the court, provided that such party is not a necessary party.

Objections as to non-joinder or misjoinder of parties

Rule 13 All objections on the ground of non-joinder or misjoinder of parties must be taken at the earliest opportunity, otherwise, they will be deemed to have been waived. But if the objection as to non-joinder of the necessary party has been taken by the defendant at the earliest stage and the plaintiff declines to add the necessary party, he cannot subsequently be allowed in appeal to rectify the error by applying for amendment. Naba Kumar v. Radhashyam, [AIR 1931 PC 229].

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