Report No. 54
Order 1, rule 8A (New)
1P.10. The Code has, at present, no provision for permitting the joinder of an organisation interested in the legal issues in a suit, i.e. an organisation which, though not concerned with the narrow questions of fact arising between the parties has a view to offer on some broader issues.
1P.11. It may be noted, in this connection, that in Soviet Russia, there is a provision for participation, in the trial by organs of State administration, trade unions, establishments, enterprises, organisations and citizens in defence of the rights of others. The Fundamentals of Soviet Civil Legislation provide as follow1:-
"In the cases provided for by law, organs of State administration, trade unions, state establishments, enterprises, kolkhozes and other co-operative and mass organisations or citizens may take action in defence of the rights and lawful interests of others.
Organs of State administration, in the cases provided for by law, may be caused by the court to join the suit on their own motion to present their "opinion on the case in order to perform their duties or to act in defence of the rights of citizens or interests of the state. The organs of state administration, establishments, enterprises and organisations enumerated in the present Article, through their representatives, and citizens may acquaint themselves with the materials of the case, make challenges, deliver pleadings, submit evidence, take part in the examination of evidence, file petitions, and also perform other procedural acts provided for by law."
1. Article 30, Fundamentals of Soviet Civil Legislation and Civil Procedure.
1P.12. It has been stated,1 that in the U.S.S.R., social organisations are drawn into civil proceedings just as they are drawn into criminal proceedings.2 A civil case may be initiated on the petition of a social organisation.3 The Court may "permit representatives of social organisation to participate in the trial'4 "in order to present the court with the opinions of authorised persons of their organisations concerning the case under consideration by the court"5. Representatives of social organisations appearing in civil cases have the same rights as counsel for the parties6. "In practice, social organisations do frequently participate in civil cases- especially in housing disputes, labour and family law".
1. See Harold Berman Educative Role of Soviet Court, (January, 1972) 20 I.C.L.Q. 81-86.
2. Apparently, the reference is to section 250, R.S.F.S.R. Cr. P.C.
3. R.S.F.S.R. Code of Civil Procedure, Article 4.
4. R.S.F.S.R. Code of Civil Procedure, Article 141(6).
5. R.S.F.S.R. Code of Civil Procedure, Article 147.
6. R.S.F.S.R. Code of Civil Procedure, Article 147.
1P.13. Some such provision-suitably adapted, of course, so as to suit Indian conditions-would be useful. It is true that it may not be in harmony with the adversary system on which our procedure is based. Some safeguards may also be required, in order to prevent busy bodies from interfering with private disputes. Nevertheless, it would be worthwhile inserting a provision which could be pressed into service in suitable cases.
1P.14. The provision could be somewhat on the following lines and find a place in Order 1:
"8A. The court may, if satisfied that a person or body of persons is interested in any question of law in issue in the suit, and that it is in the public interest to allow that person or body to present its opinion, permit that person or body to take such part in the proceedings as the court may specify."
1P.15. This will not be exactly the same as the practice of appointing an amicus curiae, because the organisation concerned would have its own views to present, and its role would not be confined to assisting the court, though its participation may help the court in elucidation of some of the issues.
Order 1, rule 9
1P.16. Order 1„rule 9, which deals with the effect of misjoinder and non-joinder of parties, provides as follows:-
"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."
1P.17. We are of the view that non-joinder of essential parties should be excluded from the scope of this rule.1 Accordingly, we recommend the insertion of the following proviso:
"Provided that nothing in this rule shall apply to non joinder of a necessary party".
1. Cf. discussion as to section 99.
Order 1, rule 10(2)
1P.18. The following changes were proposed in Order 1, rule 10(2) in the 'earlier Report on the Code,1 in order to make the rule comprehensive:-
(a) A power to strike off the name of any person who has, for any reason, ceased to be a proper or necessary party, should be added.
(b) A power to remove any person who has been unnecessarily joined, should be added.
While we see the utility of such an amendment, it appears to us that the proposed amendment will inevitably give rise to the question whether the party struck off under the rule (as proposed to be amended) should be given a right of appeal against any determination of a question which might have been rendered before he ceased to be a party. It becomes necessary to consider this aspect, because such a person would not be a party on record when the suit is finally disposed of and the decree is passed.
1. 27th Report, note on Order 1, rule 10(2).
1P.19. The right of appeal against an original decree is governed by section 96, which is silent as to the person who can appeal. Courts have in general, taken a wide view in this respect,1 and, without confining the right to the parties on record, they have entertained an appeal by a person whose rights are affected by a decree, even where he was never a party.
1. Surendra Das v. Bhola Prasad, AIR 1950 Assam 22 (Case-law reviewed).
1P.20. Even then, a controversy could arise as to whether the person whose name is struck off can be recognised as having a right of appeal against the decree thazt may be ultimately passed after he has ceased to be a party, if the decree affects his interest.
Recommendation in earlier Report not to be carried out
1P.21. In the circumstances, we have come to the conclusion that the recommendation in the earlier Report as to Order 1, rule K10(2) should not be carried out.
Order 1, rule 10A (New)
1P.22. The Code contains no express provision, empowering the court to ask counsel (not appearing in the case) to assist the court by agreements. Such a practice is common. It may be desirable to give legislative recognition to this practice.
1P.23. Accordingly, we recommend that the following new rule should be inserted in Order 10:.-
"10A. The Court may, in its discretion, request any pleader to address the Court as to any interest which is likely to be affected by the decision of the matters in issue and which is not represented."