CHAPTER THREE

PARTIES TO AND DIMENSION OF SUITS

3.1. Parties to a Civil Suit: General Requirements
Parties to civil suit: Plaintiff vs. defendant
Appellant Vs. Respondent
Requirement:
A. Capacity: Article 33(1) of Civil Pr Code
“Any person capable under the law may be a party to a suit”.
• Every person is presumed to have capacity to perform all
juridical acts unless provided otherwise by law. Art 191 of CC.
• General sources of Incapacity(physio-psychological)
• due to the status or special function of a person
 Cont’d.
B. Vested Interest-party plaintiff: Article 33(2), reads as
follows:
No person may be a plaintiff unless he has a vested interest
in the subject matter of the suit.
plaintiff should possess the right required to be enforced
under the governing substantive law.
Should be indicated in statement of claim Articles 222 and
231 of the Civ Proc Code.
Effects:
Absence of a vested interest in a suit is a ground of
preliminary objection -Article 244(2)
Mistake: court makes the substitution or addition -Art 40(1)
of Civ Pr code.
Penalty: Art 481 of Civ Pr code.
 Cont’d.
C. Allegations- Party Defendant:
• To be considered as a defendant, there must be an
allegation made against a person.
• Article 33(3) says
“No person may be a defendant unless the plaintiff
alleges some claim against him”
• If no claim is made against the defendant, he cannot be
made a defendant in a suit.
• Statement of claim shall state specific relief that the
plaintiff claims-Article 224 of the Civil Procedure Code.
 3.3. Representation in Civil Suits: Types and
Requirements
• Representative suit is a suit in which others
represent real parties to a suit- Art 65 of Civ pr
• Representation is a rule in most civil cases, and
appearance in person is an exception.
Two types:
qsituation in which the representatives act for the
interest of the real parties to a suit. Articles 34, 57-
64.
qa situation where the representatives represent the
interest of others as well their own interest. Article
38
 Cont’d.
1Legal Representation: A legal representative
represents persons under incapacity. Their legal
representatives are their organs of protection.
2Representative Class Suits: when a suit involves
several persons demanding the same relief against the
defendant for the same wrong committed against all of
them. See Art 38
parties should have the same interest in a suit;
that they agree to be represented; and
that the number of parties is more than two
3Agents/Pleaders: person authorized by operation of
law to act on behalf of a party to a suit-Article 57
 3
3.5. Joinder of Parties and Causes of Action

1. Joinder of Parties: why?

Makes parties to pool their resources together and enables
them to share costs of pursuing a suit.
It also relieves a burden of court.
Avoids the possibility of making conflicting decisions.
Vs.
Joinder is disfavored since it expands the scope of litigation
and consequently causes delay of proceedings.
It results in embarrassment of the defendant and makes him
not to be able to properly defend himself
v If joinder of causes of actions in a statement of claim results
in a delay of proceedings or embarrassment of defendant,
the court may order separate suits. Art 221
 Cont’d.
qForms and Types of Joinder of Parties:
Permissible-35, and 36 [Link]
 Mandatory- Indispensable parties
qPermissible Joinder-Art 35
the right to relief must arise from the same transaction
there is a common question of law or fact that would arise if
such persons made separate suits.
Others: 36(1,2,3,4,5,6) [Link]
 Cont’d.
Effect of Misjoinder and Non-Joinder of Parties
What will happen if there is a mis joinder or non-
joinder of parties?
• If the joinder is a permissive type, the mis-joinder
or non-joinder does not result in the defeat of a
suit.
• If a party is not joined or is improperly joined, the
appropriate measure is not to dismiss a case but to
drop a party improperly joined and demand
substitution, and proceed with the parties before a
court.
• See Art 39 of Civ Pr Code
 Cont’d
qMandatory Joinder: parties are under obligation to
bring a joint action or defense. There is no choice given
to parties other than a joint action or defense.
• Applies to both plaintiff and defendant
• No explicit rule on mandatory joinder of plaintiff under
the Civil Procedure Code except Article 36(3) and (4),
which applies to joinder of defendants.
• It is a question of substantive law than procedural
rules(e.g, joint owners, joint creditors or debtors,
husband and wife over common property, etc)
• All of them are concerned.- Indispensable parties
Article 358.
 Cont’d
What will be the consequence if there is non- joinder of an
indispensable party?
• Defendant: The court shall order the joinder of such party,
by issuing summon on him. He cannot refuse to be a named
No clear rule. defendant-Art 39, 40(2).
• Plaintiff: Art 40(2) + “No person shall be added as plaintiff
without his consent”
• The rule under article 39 is not applicable to such cases
because parties are supposed to be joined as a matter of
obligation. 2 Options
 to proceed with the case regardless of the absence of such
party by making him a defendant
 to dismiss a case if a party plaintiff refuses to be added as a
party plaintiff.
 3.5.2. Joinder of Causes of Action: Definition

• Cause of action: the facts or occurrences that give rise

to a claim for relief without particular reference to the
substantive law to be applied, or the nature of relief
sought.
• Should not bring about delay of proceeding or
embarrassment to a defendant.
See Art 217 of Civ Pr code
Exceptions: 218 and 219
 Interventions
 Intervention is a mechanism by which a party is
brought into a pending case to present a claim or
defense.
It’s not an independent or separate suit, rather it’s a
way through which interested person intervene in a
pending case.
It is question that comes into picture after a suit
undergoes some steps unlike that of joinder.
 Cont’d.
Purposes
• Beyond attaining the goals of civil procedure,
intervention serves the following purpose:
qAvoids the possibility of conflicting
decisions.
qEnsures the rights and interests of 3rd
parties
qSaves time and expense.
 Cont’d.
Requirements
A. Substantive standards
B. Procedural standards
A. Substantive standards : There are no
substantive requirements provided under Art
41(1). “Any person interested in a suit b/n
other parties….” or’” “ በ ጉ ዳ ዩ ያ ገ ባ ኛ ል
የ ሚል ….”
• What is does it mean “interested in a suit..”?
 Cont’d.
Ø Indian Civil Procedure Code Art 89 says:
Ø “---- a person interested in a suit means the
disposition of the action in the absence of the
applicant would impair his interest or, will
directly affect his or her proprietary or
pecuniary interest.”
Ø If decision to be given will directly or indirectly affect his
interest he can be considered as “interested party”
When will the decision to be given will affect the interest of
the applicant?
 If he cannot institute another suit
 If the judgment will be enforced against him.
 “..gain or lose by direct legal operation and effect
of the judgment …” Sedler
 Cont’d.
• Therefore, those whose interest will be affected
are:
qSedler: Indispensable party
qIndia: not only those who gain or lose by direct
effect of the judgment, but also:
Necessary party
Proper Party
• Which line of argument is sound?
• What is the difference b/n these parties?
 Cont’d
Ø Indispensable parties:- are parties who are interested in
the controversy and the court cannot do complete justice
with out them and the litigation cannot go for
ward.(joint owner, etc)
Ø Necessary parties; are parties so interested in the
controversy that they should normally be made parties in
order to enable the court to do complete justice, yet if
their presence in the suit cannot obtained the litigation
will continue with out them.
Ø Proper parties:- are those in whose absence an
effective order can be passed whose presence is not
needed for a complete and effective adjudication.
 Cont’d
vIn order to attain the goals of civil procedure,
the decision given regarding the intervention of
3rd parties should take in to consideration the
interests of all parties to be affected the effects
of the judgment.
 Cont’d
B-Procedural standard:
Art 41(1) “Any person interested in a suit
between other parties may intervene therein at
any time before judgment”.
“..ተ ከ ራ ካ ሪ ወ ገ ኖ ች በ ክ ር ክ ር ላ ይ ባ ሉ በ ት ጊ
ዜ ..”
Ø Can application for intervention be brought on one party
proceeding?
Ø Does the word “suit” includes one party proceeding or
two party proceeding only?
 Cont’d
• As per Art 32(1) provision of Art 32-78 shall apply on any
proceeding under civil procedure code.
• Under Art 41, it seems what is important is the matter at
issue not the parties.
Types of Intervention:
An application of a third party: Art 41
As of obligation-public procedure: Art 42
 Cont’d.
Conditions:
• A party who wants to intervene shall file a written
application in which he is expected to state reasons
justifying his intervention. The application shall be filed
at any time before a decision is given.
• Art.41(2) The intervention shall be made by the filing of
a separate statement containing all the grounds which
justify such person in intervening.
vShould it be brought with annex? Two lines of
argument:
 Cont’d.
1st : No need to attach annex: Because;
Art.41(2) doesn’t state the content and forms of
the application and
Didn’t refers to Art 222 and 223 of the code.
2nd: There should be an annex
As per Art 80 it forms part of a pleading.
 Art 80(2) a pleading shall be in a Form in the
First Schedule to this Code which includes annex.
• Cassation bench: 8092 it should be supported by
relevant evidences. On another case:-evidence will be
considered at the time of decision on subject matter
not at the time of application.
 Cont’d
At what time?
• “…suit..”…..any time before judgment…” first
instance cases or appellate cases?
Two arguments
1st : Art .41 shall apply on appellate cases
Art. 32 (1) The provisions of this Book shall apply in
any proceeding under this Code. Since appeal is a
proceeding conducted in accordance with civ proc code
Art 41 shall apply on appeal.
• Art 32(2) “suit” shall include appeal.
 Cont’d.
2nd : Art. 41 should not apply on appeal.
ØIn order to be party to appeal it’s one should take part
in the first instance case-Art 320
• The appellant may not raise any fact which was not in
evidence in the court which gave the judgment
appealed from. Art 329
ØIndian Civil Procedure: “suit is proceeding in action in
c o u r t s o f f i rst i n st a n c e a s d i st i n g u i s h e d f ro m
proceedings in appellate courts”
Which line of argument do you think sound?
 Cont’d.
• Art 41(1) “…..suit” implies the fist instance
case pending at the courts having the
jurisdiction to entertain the case.
• The phrase “..at any time before
judgment ..” or “… ከ ፍ ር ድ ውሳ ኔ በ ፊ
ት …” alludes the judgement rendered by the
courts of first instance jurisdiction.
 3.7. Third-Party Practice/Impleader:
• It is a mechanism by which a defendant brings into a suit a
third party on the ground that such third party covers or
shares the whole or part of claim of plaintiff. Art 43(1)
to settle claims involving the same cause of action/
transaction in a single suit.
§ defendant shall demand a court for the third party practice
in his statement of defense
§ defendant should mention the extent of contribution or
indemnity
The claim can also works against the defendant in the
suit, if any. Art 43(4).
Joint creditors, joint debtors, joint owners
Insurance, vicariously liable employer. See cassation
bench decision Vol 9 No 39799,p.317
 Cont’d
vWith whom can the defendant make a claim?
v1st stand: he can’t make a claim
ØArt 43(2) Amharic በ ክ ሱ ውስ ጥ እ ን ዳ ለ ሆ ኖ
ይ ቆ ጠራ ል
ØArt . 43(2) English “ … the claims as b/n the
defendant and third party …” shows there will be no
claim with the plaintiff.
Ø[Link] “There is no provision in the civil proc.
code authorizing 3rd party defendant to make a claim
against plaintiff.
 Cont’d.
2nd stand: he can make a claim with the plaintiff.
ØArt.43(2 )…በ ክ ሱ ውስ ጥ እ ን ዳ ለ ሆ ኖ ይ ቆ ጠራ ል ፡
፡ shows that he is a party to the suit
ØArt.43( 2) shall be deemed to be in the same position as a
defendant…implies he can be considered as the principal
defendant..
• …..ስ ለ ሆ ነ ም የ ኦ ሮ ሚያ ጠ ቅ ላ ይ ፍ /ቤ ት ይ ግ
ባ ኝ ሰ ሚ ች ሎ ት አ መል ካ ች ከ ተ ከ ሳ ሽ ጋ ር እ ን
ጂ ከ ከ ሳ ሽ ጋ ር መከ ራ ከ ር አ ይ ች ል ም በ ማለ ት
የ ፍ /ብ /ሥ/ሥ/ሕ ግ ቁ ጥ ር 43(1) በ መጥ ቀ ስ የ ሰ
ጠው ፍ ር ድ በ ፌ ደ ራ ለ ሰ በ ር ሰ ሚ ች ሎ ት የ ተ ሰ
ጠ ውን አ ስ ገ ዳ ጅ የ ሕ ግ ት ር ጉ ም(23692) ያ ላ ገ
ና ዘ በ በ መሆ ኑ ዉሳ ኔ ዉ መሠ ረ ታ ዊ የ ህ ግ ስ ህ
ተ ት የ ተ ፈ ፀ መበ ት ሆ ኖ አ ግ ኝ ተ ና ል ፡ ፡ ስ ለ
ዚ ህ ም አ መል ካ ች በ ክ ር ክ ሩ ሊ ያ ነ ሳ የ ሚች ለ
ው የ ኃ ላ ፍ ነ ት እ ና የ ኃ ላ ፍ ነ ት መጠ ን ከ ተ ከ
ሳ ሽ ጋ ር ብቻ የ ተ ወሰ ነ ሳ ይ ሆ ን ከ ከ ሳ ሽ ጋ ር
 3. 8. Change of Parties
• In civil cases death of one of the parties does not
automatically cause the termination of a suit.
• Others can replace the deceased party and the suit
continues. This is possible if the right to sue survives.
• Article 48(1) reads:
The death of a plaintiff or defendant shall not cause the
suit to abate if the right to sue survives.
• If the court adjourns the case a judgment, there is no
change of parties if one of them dies. Art 53