Conditions of Addition and Removal of Parties in Petition

By LI Research

Published On: February 13, 2022 at 13:10 IST

Definition of Petition

It is a legal document termed as a formal request which seek a specific order of court. It is made by a person, group or organization to the court generally at the initiation of a lawsuit. A petition is filed by a petitioner against a respondent in stage one of a lawsuit which should be specifying the reason of a case.

Petition moves through a series of stages before it gets finally solved.

Dismissing a case, reducing bail or providing a continuance might be included in the order of a court.

Types of Petitions to be filed in Supreme Court of India

The various categories of cases under Civil appeals which can be filed in the Supreme Court are as follows:

(1) Arbitration Petition: It is a petition filed under Sub-Section 5 of Section 11 of the Arbitration and Conciliation Act, 1996.

(2) Civil Appeal: There are following cases:

• Under Article 132 and 133 of the Constitution which is to be read with Order XIX of the Rules.
• Upon grant of Special leave to appeal which is mentioned under Article 136 of the Constitution which is to be read with Order XXI of the Rules.
• Under Section 130E of the Customs Act, 1962.
• Under Section 35L of the Central Excise and Salt Act, 1944.
• Under Section 23 of the Consumer Protection Act, 1986.
• Appeal which is made under Section 27A of the Consumer Protection Act, 1986.
• Appeal made under Section 19(1) (b) of the Contempt of Courts Act, 1971.
• Section 38 of the Advocates Act, 1961 also prescribes a process of appeal.
• Appeal made under Section 116A of the Representation of People Act, 1951.
• Section 18 of the Telecom Regulatory Authority of India Act, 1997 also has the provision of civil appeal.
• Section 15Z of the Securities and Exchange Board of India Act, 1992 also give the clue regarding Civil appeal.
• Appeal which is made under Section 261 of the Income Tax Act, 1961 also comes under civil appeal.
• Appeals under Section 53T of the Competition Act, 2002 also prescribes civil appeal.
• Appeals made under Section 30 and 31 of the Armed Forces Tribunal Act, 2007.
• Civil appeal under Section 125 of the Electricity Act, 2003.
• Appeals made under Section 29(1) of the Wealth Tax Act, 1957.
• Appeals under Section 22 of the National Green Tribunal Act, 2010 also falls under civil appeal.
• Appeals made under Section 10 of the Special Court (Trial of Offences relating to Transaction in Securities) Act, 1992.
• Appeal which is made under Section 423 of the Companies Act, 2013.
• Appeal made under Sections 17 and 18 of the Airport Economic Regulatory Authority of India Act, 2008.

(3) Contempt Petition (Civil): It is a Petition mentioned under Rule 3 of the Rules to Regulate Proceedings for the Contempt of the Supreme Court, 1975, which is to be read with Section 2(b) of the Contempt of Courts Act, 1971, and Articles 129 and 142(2) of the Constitution.

(4) Contempt Petition (Criminal): It is a Petition mentioned under Rule 3 of the Rules to Regulate Proceedings for Contempt of the Supreme Court, 1975 which is to be read with Section 2(c) of the Contempt of Courts Act, 1971, and Articles 129 and 142(2) of the Indian Constitution.

(5) Criminal Petition: The following cases must be registered as Criminal appeals:

• Appeals which is made by certificate under Articles 132(1) and 134(1) (c) which is read with Order XX of the Rules.
• The one which is filed under Article 134(1) (a) and (b) or made any provision of law mentioned under Order XX of the Rules.
• Appeals upon grant of Special leave to appeal which is made under Article 136 of the Constitution read with Order XXII of the Rules.
• Appeals which is made under Sections 30 and 31 of the Armed Forces Tribunal Act, 2007.
• Appeals which is made under Sections 10 of the Special Court (Trial of Offences relating to Transaction in Securities) Act, 1992.
• Appeals made under Section 374 of the Code of Criminal Procedure, 1973 also fall under this category.
• Appeals made under Section 380 of the Code of Criminal Procedure, 1973.
• It also include appeals which is made under Section 2 of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 which is amended by the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Amendment Act, 1972 which is to be read with Section 379 of the Code of Criminal Procedure, 1973.
• Appeal which is made under Section 19(1) (b) of the Contempt of Courts Act, 1971.

(6) Election Petition: It is a Petition under Part III of the Presidential and Vice-Presidential Elections Act, 1952 which is to be read with Article 71 of the Constitution and Order XLVI of the Rules relating to confusion and conflicts in relation with the election of a President or Vice-President.

(7) Original Suit: A suit which is filed under Article 131 of the Constitution in relation to any:

• Dispute arises between the Government of India and one or the more States.
• Dispute which arises between the Government of India and any State or States on one side and one or more other States on the other.
• When disputes arising between two or more States.

(8) Petition for Special Leave to Appeal: It is a petition which is filed under Article 136 of the Constitution from a High Court’s order which refuses to grant certificate under Article 134A of the Constitution or in any other case from any decree passed or made by any Court or Tribunal except in relation with the armed forces.
Further details on Special Leave Petition

(9) Special Reference Cases: There are numerous cases which must be registered as reference cases.

(10) Transferred Cases: It is a case under Article 139A (1) of the Indian Constitution which must be read with Order XL of the Rules which is transferred by the High Courts.

(11) Transferred Petition: They are as follows:

• All the petition which is filed under Article 139A (1) of the Indian Constitution which can either be civil or criminal.
• Petition which is filed under Article 139A (2) of the Indian Constitution which can be either civil or criminal.
• Petition under Section 25 of the Civil Procedure Code, 1908 also leads to transfer petition.
• Every petition which is filed under Section 406 of Civil Procedure Code, 1908 refers to transfer petition.
• Petitions under Section 11 of the Terrorist Affected Areas (Special Courts) Act, 1984 are also transfer petition.

(12) Writ Petition: They are those petitions which are filed under Article 32 of the Indian Constitution which is in relation with the violation of rights guaranteed under Part III of the Constitution in a civil cases except Habeas Corpus.

It also includes petition filed under Article 32 of the Indian Constitution which is related to criminal matters. Further, Petition under Article 32 relating to Public Interest Litigation is also under writ petition which can either be civil or criminal.
Further details on Writ Petition

(13) Review Petition: It is a Petition which is filed under Article 137 of the Constitution which is to be read Order XLVII of the Supreme Court Rules 2013 which can either be civil or criminal.

(14) Curative Petition: It is a Petition which is filed under Order XLVII of the Supreme Court Rules which can either be civil or criminal.
Further details on Curative Petition

Addition and Deletion of Parties in Civil Petition

There are two types of person who can be added as a party to the suit. They are as follows:

1. Necessary Party: A person is treated as necessary party in whose absence the relief claimed in the suit cannot be granted. It is against whom the relief is sort and the order cannot be passed in his absence. There are two tests provided for the determination of a necessary party.

It was held by the Apex Court in the case Kasturi v. Uyyamperumal and others (2005) 6 SCC 733 that there are two tests available to determine a necessary party. They are:

1. A right to relief must be present against such party in respect of the controversies which are involved in the proceedings.
2. They are the one whose absence does not allow the court to pass any decree.

The addition of parties only in order to avoid multiplicity of suits is not proper if there addition is not necessary.

2. Proper Party: They are being added in order to decide the suit finally and also to avoid future litigations.

An application must be filed under Order 1 Rule 10(2) of the Code of Civil Procedure for the deletion or removal of a party from a petition. It should be attached with an affidavit mentioning about the deletion of name. It also deals the court to avoid multiplicity of proceedings.

The power available to courts under this provision are very wide and equally extensive.

Order 1 Rule 10(2) of the Civil Procedure Code: – “The Court may at any stage of proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as a plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as a plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.”

The Addition of parties in a Civil petition may also be done under Order 1 Rule 10(2) of the Code of Civil Procedure. Addition of party as a plaintiff is dealt under Rule 10(3) of Order 1 whereas Rule 10(4) of Order 1 deals with the addition of defendant by the Court in a Civil petition.

Order 1 Rule 10 of the Civil Procedure Code, 1908

1. Where a suit has been instituted in the name of the wrong person as plaintiff or whether is doubtful whether it has been instituted in the name of the right plaintiff, the court may at any stage of the suit, if satisfied that a suit instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any person to be substituted or added as plaintiff upon such terms as the court thinks just.
2. Court may strike or add parties- the court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just., order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and the name of any person who ought to have been joined, whether as a plaintiff or defendant, or whose presence is necessary before the Court and also to effectually and completely adjudicate upon and settle all the questions involved in the suit, be added.
3. No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.
4. Where defendant added, plaint to be amended- where a defendant is added, the plaint shall, unless the court otherwise directs, be amended in such a manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the court thinks fit, on the original defendant.

The parties can also be added or removed according to the provisions mentioned under Rule 19 of the Civil Procedure Code.

Rule 19 of the Code of Civil Procedure
Change of parties – General

19.2. A Claimant may add a new defendant to proceedings without permission at any time before the case management conference. The claimant does so by filing at the court office an amended claim form and statement of claim, and Parts 5 (service of claim within jurisdiction), 7 (service of court process out of jurisdiction), 9 (acknow­ledgment of service and notice of intention to defend), 10 (defence) and 12 (default judgments) apply to the amended claim form as they do to a claim form

Part 18 deals with counterclaims and the adding of additional parties by a Defendant.

The court may add a new party to proceedings without an application if –

• It is desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings; or
• There is an issue involving the new party which is connected to the matters in dispute in the proceedings and it is desirable to add the new party so that the court can resolve that issue.

The court may order any person to cease to be a party if it considers that it is not desirable for that person to be a party to the proceedings.

The court may order a new party to be substituted for an existing one if the –

• Court can resolve the matters in dispute more effectively by substi­tuting the new party for the existing party; or
• Existing party’s interest or liability has passed to the new party.

The court may add, remove or substitute a party at the case management conference.

The court may not add a party (except by substitution) after the case management conference on the application of an existing party unless that party can satisfy the court that the addition is necessary because of some change in circumstances which became known after the case management conference.

Procedure for Adding and Substituting Parties

19.3. The court may Add, Substitute or Remove a party on or without an application.

An application for permission to Add, Substitute or Remove a party may be made by –

• An existing party; or
• A person who wishes to become a party.

An application for an order under Rule 19.2(5) (substitution of new party where existing party’s interest or liability has passed) may be made without notice but must be supported by evidence on affidavit.

A person may not be added or substituted as a claimant unless that person’s written consent is filed with the court office.

An order for the Addition, Substitution or Removal of a party must be served on –

• All parties to the proceedings;
• Any party added or substituted; and
• Any other person affected by the order.

If the court makes an order for the Removal, Addition or Substitution of a party, it must consider whether to give consequential directions about –

• Filing and serving the claim form and any statements of case on any new defendant;
• Serving relevant documents on the new party; and
• The management of the proceedings; and subject to such directions, rule 19.2(2) applies.

If the Court makes an order for the addition or substitution of a new defendant; and Claim form is served on the new defendant; these Rules apply to the new defendant as they apply to any other defendant. Special provisions about adding or substituting parties after end of relevant limitation period

19.4. This rule applies to a change of parties after the end of a relevant limitation period.

The court may Add or Substitute a party only if the –

• Addition or substitution is necessary; and
• Relevant limitation period was current when the proceedings were started.

The Addition or Substitution of a party is necessary only if the court is satisfied that the –

• Claim cannot properly be carried on by or against an existing party unless the new party is added or substituted as claimant or defendant;
• Interest or liability of the former party has passed to the new party; or
• New party is to be substituted for a party who was named in the claim form in mistake for the new party.

Addition and Removal of parties in Criminal Petition

There is no particular provision of addition and removal of parties in a criminal process because the addition and removal is a matter of trial. Charges are framed against the accused and the aggrieved party must also be mentioned.

The evidences which are presented by the prosecution or defense lawyer decides whether the accused party is guilty of the offence or not. It also identifies whether the person filed as an aggrieved party is the survivor in fact. Therefore, the evidences help the Judge to give the order as required.

Addition or Removal of parties in an Arbitration petition

There are times when situation arises that one party claim the existence of valid agreement whereas the other deny to it

Law on this subject is very clear that a party not having signatory to an arbitration agreement cannot be subjected to arbitration proceedings but there may arise situations sometimes where it is a general concern that the dispute may not be fully resolved unless non-parties are joined in arbitration proceedings.

Conclusion

The Deletion and Addition of parties in a suit is necessary in order to have proper proceeding and punish the guilty ones. The format and the evidences must be kept in mind while dealing with a trial of a case. The court must look after the evidences in criminal matters in order to decide whether the accused is eligible of the charges framed against him or not.

Edited by: Tanvi Mahajan, Publisher, Law Insider