Striking Out, Addition and Substitution of Parties Under Order I Rule 10 CPC

Key Takeaways

• Order I Rule 10 of the Code of Civil Procedure, 1908 deals with substitution, addition and striking out of parties in a civil suit. It enables the court to ensure that the real dispute is decided between the persons whose presence is legally required.
• A person may be substituted or added as plaintiff where the suit was instituted in the name of the wrong plaintiff because of a bona fide mistake and the change is necessary for deciding the real matter in dispute.
• Under Order I Rule 10(2) CPC, the court may strike out a party who has been improperly joined or add a person who ought to have been joined or whose presence is necessary for complete and effective adjudication.
• A necessary party is a person without whom an effective decree cannot be passed. A proper party is one whose presence assists the court in completely and effectively deciding the dispute, even though a decree can technically be passed without that person.
• The power under Order I Rule 10 is discretionary and judicial. The court may exercise it on an application by a party, an application by a person seeking impleadment, or even on its own motion.
• Under Order I Rule 9 CPC, a suit is ordinarily not defeated merely because of misjoinder or non-joinder of parties. However, this protection does not apply where a necessary party has not been joined.
• The object of Rule 10 is not merely procedural convenience. It is intended to ensure that the court can effectively settle the real controversy and avoid incomplete, ineffective or unnecessarily repetitive litigation.

What Is Order I Rule 10 of CPC?

Order I Rule 10 of the Code of Civil Procedure, 1908 deals with the striking out, addition and substitution of parties in a civil proceeding. It gives the court sufficient procedural flexibility to correct defects relating to parties so that the actual dispute can be decided effectively.

A civil suit may sometimes be instituted by the wrong plaintiff because of a genuine mistake. In other cases, a person who should have been made a party may have been omitted. There may also be situations where a person has been joined even though that person’s presence is not required.

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Order I Rule 10 allows the court to correct such situations rather than permitting procedural defects relating to parties to obstruct the adjudication of the real dispute. The provision forms an important part of the wider rules relating to joinder of parties under CPC.

The provision broadly covers:

• substitution or addition of the correct plaintiff where a bona fide mistake has occurred;
• removal of an improperly joined plaintiff or defendant;
• addition of a necessary or proper plaintiff or defendant; and
• consequential amendment of the plaint when a new defendant is added.

The provision must be read together with other rules of Order I, particularly Rules 9 and 13 relating to non-joinder, misjoinder and objections regarding parties.

When Can the Wrong Plaintiff Be Substituted?

Order I Rule 10(1) applies where a suit has been instituted in the name of the wrong person as plaintiff or where there is doubt regarding whether it has been instituted in the name of the correct plaintiff.

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The court may substitute or add another person as plaintiff when two essential requirements are satisfied.

There Must Be a Bona Fide Mistake

The institution of the suit in the name of the wrong plaintiff must have occurred because of a bona fide mistake.

A deliberate attempt to bring proceedings through a person having no connection with the dispute cannot ordinarily be corrected merely by relying on Rule 10(1). The provision is intended to protect genuine mistakes concerning the identity of the person legally entitled to sue.

The court must therefore be satisfied that the mistake was genuine and that the proceeding was intended to enforce the right involved in the dispute.

Substitution Must Be Necessary to Decide the Real Dispute

The addition or substitution must also be necessary for determination of the real matter in dispute.

The court therefore considers whether bringing the correct plaintiff on record would enable the existing controversy to be properly adjudicated instead of forcing another proceeding merely because the original suit was filed in the wrong name.

For example, if an agent mistakenly institutes proceedings in the agent’s own name when the cause of action actually belongs to the principal, the court may, where the statutory requirements are fulfilled, substitute the principal as plaintiff.

The emphasis is therefore on correcting a genuine procedural mistake while preserving the substance of the dispute.

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What Is Meant by Striking Out a Party?

Under Order I Rule 10(2), the court may order the name of a person who has been improperly joined as plaintiff or defendant to be struck out.

A person may have been unnecessarily included even though no relief is claimed against that person and the person’s presence is not required for determination of the controversy.

Retaining such a person may unnecessarily complicate the proceeding, increase costs and enlarge the scope of the suit beyond the real controversy.

The court can therefore remove an improperly joined party whenever the requirements of Rule 10(2) are satisfied.

Importantly, the power is not dependent entirely upon an application by one of the parties. The court may exercise the power either upon an application or on its own motion when the circumstances require correction of the array of parties.

When Can a Person Be Added as a Party?

Order I Rule 10(2) identifies two important situations in which a person may be added.

A person may be added where:

1. the person ought to have been joined as a plaintiff or defendant but was omitted; or
2. the person’s presence is necessary to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit.

These two situations form the foundation of the concepts of necessary parties and proper parties.

The purpose is not to permit every person having some indirect connection with the dispute to enter the proceeding. There must be a sufficient legal connection between the proposed party and the questions that the court is required to decide.

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Who Is a Necessary Party?

A necessary party is a person who ought to have been joined and in whose absence an effective decree cannot be passed.

The test is therefore not merely whether a person has some connection with the subject matter. The question is whether the dispute can legally and effectively be decided without that person.

Two considerations are generally important.

Right to Relief

There should ordinarily be some right to relief concerning the controversy involving the person sought to be added.

Effective Decree

It should be impossible or legally ineffective to pass a complete decree in the person’s absence.

The concept of a decree is central to this test because a decree under CPC formally determines the rights of the parties regarding matters in controversy in a suit. If the court cannot effectively determine or enforce those rights without an omitted person, that person may be a necessary party.

Failure to implead a necessary party can have serious procedural consequences because the general protection against non-joinder under Order I Rule 9 does not extend to the non-joinder of an indispensable party.

Who Is a Proper Party?

A proper party is different from a necessary party.

A proper party is a person whose absence does not prevent the court from passing a decree but whose presence enables the court to completely, effectively and adequately adjudicate upon the questions involved in the proceeding.

Therefore:

• a necessary party is indispensable for effective adjudication;
• a proper party is not indispensable to the validity of the decree;
• however, the presence of a proper party may enable the court to resolve the controversy more completely.

The distinction between the two concepts is important because an applicant does not become entitled to impleadment merely by showing some general interest in the subject matter. The nature and extent of that interest must be examined in relation to the actual dispute.

A detailed understanding of the difference between necessary party and proper party is therefore important while applying Order I Rule 10.

Difference Between Necessary Party and Proper Party

The distinction is important in applications for impleadment.

The court must examine the real nature of the dispute rather than merely relying on the description given by the applicant.

Can the Court Add a Party Without an Application?

Yes. The court can add a party even without an application where the requirements of Order I Rule 10(2) are satisfied.

The provision empowers the court to act either upon or without an application by either party.

Therefore, where the court discovers during the proceeding that a person is necessary for effective determination of the controversy, it may direct that person’s addition even if the existing plaintiff or defendant has not requested it.

The power is one of judicial discretion. It must be exercised according to the nature of the controversy, the rights involved and the requirements of complete adjudication rather than arbitrarily.

The primary consideration remains whether the person’s presence is required for effectively and completely deciding the questions involved in the suit.

At What Stage Can a Party Be Added or Removed?

The language of Order I Rule 10 permits the court to exercise the power at any stage of the proceedings.

This gives the provision a wide procedural operation. Where circumstances justify it, questions relating to addition or deletion of parties are not necessarily confined to the initial stage of the suit.

Such alteration may be permitted during the suit and, in appropriate circumstances, questions concerning necessary parties may also arise at the appellate stage.

The central consideration remains whether the proposed change is necessary or appropriate for effective determination of the controversy.

However, delay, prejudice to existing parties, the nature of the claim and the procedural consequences of addition may all be relevant while the court exercises its discretion.

Can a Person Be Added as Plaintiff Without Consent?

A person cannot ordinarily be compelled to become a plaintiff contrary to that person’s consent.

Order I Rule 10 places an important restriction on addition as a plaintiff. The provision recognises that placing a person in the position of a claimant is materially different from adding that person as a defendant.

A plaintiff actively seeks relief from the court. Compelling an unwilling person to prosecute a claim may therefore create difficulties concerning the nature of the proceeding and the relief being sought.

The court must consequently distinguish between a person whose presence is necessary as a defendant and a person proposed to be brought into the proceeding as a plaintiff.

What Happens When a New Defendant Is Added?

Order I Rule 10 also deals with the procedural consequences of adding a defendant.

When a defendant is added:

• the plaint is ordinarily required to be amended;
• amended copies of the plaint and summons must be served upon the newly added defendant; and
• appropriate procedural opportunity must be provided to the new defendant to participate in the proceeding.

These requirements protect procedural fairness.

A newly impleaded defendant should have adequate knowledge of the allegations, the nature of the suit and the relief sought so that an effective defence can be presented.

Order I Rule 9 and Non-Joinder of Necessary Parties

Order I Rule 9 provides the general rule that a suit should not fail merely because of misjoinder or non-joinder of parties. The court may determine the controversy concerning the rights and interests of the parties actually before it.

However, there is an important exception: the protection does not extend to non-joinder of a necessary party.

The concepts of non-joinder and misjoinder of parties must therefore be distinguished carefully.

Misjoinder generally occurs when persons who should not have been joined have been included in the proceeding.

Non-joinder occurs where a person who ought to have been joined has not been made a party.

A mere defect relating to an unnecessary or proper party does not ordinarily defeat the suit. However, if the omitted person is a necessary party and an effective decree cannot be passed without that person, the defect becomes substantially more serious.

An allegation of non-joinder must also have a factual basis. A vague assertion that unidentified persons have not been joined does not by itself establish that the suit suffers from non-joinder of necessary parties.

Impleadment in Property Disputes

Questions under Order I Rule 10 frequently arise in property disputes because several persons may claim different interests in the same property.

However, merely claiming some connection with the property is not enough. The court considers whether the alleged interest has a sufficient relationship with the controversy already before it.

Property disputes may involve ownership, possession, agreements for sale, inheritance, co-ownership or competing claims arising from different transactions.

The nature of the original suit therefore becomes crucial.

For example, in a suit for specific performance, the principal controversy ordinarily concerns enforcement of a contractual obligation. The question of whether another claimant should be impleaded must therefore be examined in light of the nature of that contractual dispute and the relief sought.

A person asserting an independent or remote interest in the same property does not automatically become a necessary party merely because the subject property is common.

Md. Sabir Ansari v. Sada Nanda Mandal

In Md. Sabir Ansari v. Sada Nanda Mandal, the dispute concerned an applicant claiming an interest in part of the property involved in the title suit on the basis of agreements for sale.

The applicant had also instituted separate suits for specific performance relating to those agreements.

The court considered whether the applicant’s claimed interest was sufficiently connected with the property and controversy to justify impleadment.

The principle emerging from the decision is that, at the impleadment stage, the court is concerned primarily with whether the applicant demonstrates a sufficient legal interest and whether effective adjudication requires the person’s presence.

The merits or ultimate chances of succeeding in the substantive claim should not ordinarily be finally determined while deciding an application merely for impleadment.

This approach prevents an application under Order I Rule 10 from becoming a premature trial of the substantive rights claimed by the proposed party.

Babulal Khandelwal v. Balkishan D. Sanghvi

The Supreme Court’s decision in Babulal Khandelwal v. Balkishan D. Sanghvi is significant in understanding impleadment in an administration suit.

The proceeding concerned administration of the estate of deceased persons. Certain transactions involving properties claimed to form part of the estate were questioned, and persons connected with those transactions were impleaded.

The Supreme Court upheld the impleadment because determining the assets forming part of the deceased’s estate could require examination of transactions involving estate property.

Consequently, persons connected with such transactions could become relevant parties for proper determination of the estate.

The decision demonstrates that necessity for impleadment depends substantially upon the nature and scope of the proceeding. A person who might not be necessary in one type of suit may become necessary or proper in another because the questions requiring adjudication are different.

Laxmishankar Harishankar Bhatt v. Yashram Vasta

In Laxmishankar Harishankar Bhatt v. Yashram Vasta, the Supreme Court considered a property dispute in which an objection relating to other alleged co-owners was raised.

The case reflects the principle that a suit cannot automatically be defeated by simply alleging that additional co-owners exist.

The party raising the objection must establish the factual basis showing that omitted persons are actually necessary parties.

A vague assertion regarding the existence of other co-owners is not sufficient. The court must consider the evidence and determine whether the omitted persons actually possess such rights that an effective adjudication cannot take place in their absence.

The decision is therefore relevant to the relationship between Order I Rule 9 and Order I Rule 10 CPC.

Role of Co-Owners in Civil Suits

The presence of every co-owner is not invariably essential in every type of proceeding.

Depending upon the relief claimed and circumstances of the case, one co-owner may sometimes maintain proceedings relating to common property without impleading every other co-owner.

For instance, principles recognised in cases concerning recovery of possession or eviction show that non-joinder must be examined with reference to whether the omitted co-owner is genuinely indispensable for granting effective relief.

The legal framework relating to recovery of possession of movable and immovable property also demonstrates the importance of determining the nature of the plaintiff’s right and the relief claimed before deciding questions concerning parties.

Therefore, the expression necessary party cannot be applied mechanically merely because several persons may possess some interest in the property.

The real test remains whether an effective decree concerning the dispute before the court can be passed in the absence of the person concerned.

Plaintiff as Dominus Litis

Ordinarily, the plaintiff is regarded as dominus litis, meaning that the plaintiff controls the litigation and generally determines the persons against whom relief is sought.

A plaintiff cannot ordinarily be compelled to litigate against every person claiming some interest in the subject matter.

However, this principle is subject to Order I Rule 10(2).

Where a person is found to be a necessary or proper party, the court may direct impleadment despite the plaintiff’s objection. The plaintiff’s choice of defendants cannot prevent the court from adding a person whose presence is legally required for effective adjudication.

Conversely, a third person does not acquire an automatic right to enter the litigation merely by asserting an interest.

The court therefore balances the plaintiff’s control over the proceeding with the need to ensure that all persons genuinely required for complete adjudication are before it.

Factors Considered by Courts While Adding a Party

While deciding an application under Order I Rule 10, courts commonly examine several interconnected considerations.

Nature of the Dispute

The court first considers the real controversy raised in the suit and the relief claimed.

The identity of necessary and proper parties depends considerably upon the nature of that controversy.

Nature of the Applicant’s Interest

The interest claimed must ordinarily have a direct and sufficient relationship with the dispute.

A remote, contingent or speculative interest may not justify impleadment merely because the proposed party might ultimately be affected in some indirect manner.

Possibility of an Effective Decree

The court examines whether an effective decree can be passed in the absence of the proposed party.

If no effective decree can be passed without that person, the case for treating the person as a necessary party becomes considerably stronger.

Complete Adjudication

Even where a decree remains possible, addition may be justified if the person’s presence is required to completely and effectively settle the questions involved in the proceeding.

This is particularly relevant while identifying a proper party.

Prejudice and Procedural Fairness

The court may consider whether addition would unfairly prejudice existing parties, substantially alter the nature of the suit or unnecessarily complicate the proceeding.

The discretion under Rule 10 must promote fair adjudication rather than create an entirely different controversy.

Avoidance of Multiplicity

Where appropriate, impleadment may help avoid repeated litigation concerning substantially the same controversy.

However, avoidance of another suit cannot by itself justify addition where the person is neither a necessary nor a proper party.

The requirement of a genuine legal connection with the questions involved in the existing suit remains important.

Difference Between Addition, Substitution and Striking Out of Parties

Although these powers appear together in Rule 10, they serve different purposes.

Addition of a party means bringing a new person into an existing proceeding because that person’s presence is required or appropriate for deciding the controversy.

Substitution of a party means replacing an incorrectly named or inappropriate party with the person who should properly occupy that position.

Striking out a party means removing a person who was improperly joined and whose presence is unnecessary for deciding the dispute.

The wider rules concerning joinder, addition and removal of parties are intended to ensure that the persons before the court correspond with the real controversy requiring adjudication.

All three powers ultimately serve the same procedural objective: ensuring that litigation proceeds between the parties genuinely connected with the dispute.

Conclusion

Order I Rule 10 CPC is an important procedural provision governing striking out, addition and substitution of parties in civil suits. It prevents genuine disputes from failing merely because the original array of parties was imperfect while also protecting proceedings from unnecessary or improper parties.

A plaintiff wrongly named because of a bona fide mistake may be substituted where the change is necessary for deciding the real controversy. Under Rule 10(2), the court may remove an improperly joined party or add a necessary or proper party at an appropriate stage of the proceeding.

The most important distinction is between a necessary party, without whom an effective decree cannot be passed, and a proper party, whose presence enables fuller and more effective adjudication.

Courts exercise this power judicially by examining the nature of the suit, the interest claimed by the proposed party and the extent to which that person’s presence is connected with the real questions requiring determination.

Order I Rule 10 therefore reflects the broader approach of civil procedure that substantive disputes should, as far as possible, be decided effectively and completely rather than being defeated by correctable procedural defects concerning parties.