Parties
Foundations
Correctly identifying who may sue and be sued determines whether a suit is maintainable. The core ideas are capacity, joinder, misjoinder and non-joinder, and the rules on representative and public-interest actions.
Concepts to master
- Capacity: minors and persons of unsound mind sue through a next friend and defend through a guardian ad litem; the court must ensure the guardian's interest is not adverse.
- Necessary parties must be joined for an effective decree; proper parties may be joined though not essential. Non-joinder of a necessary party is fatal; non-joinder of a proper party is not.
- Misjoinder of parties or causes of action is generally curable and not a ground for rejection.
- Representative suits allow one or more persons to sue or be sued on behalf of many with the same interest, with the court's permission and notice.
- Substitution and abatement: on the death of a party, the legal representatives must be brought on record within the prescribed period, failing which the suit may abate.
Traps in questions
- Treating non-joinder of a proper party as fatal.
- Forgetting that a suit by or against a minor without a proper next friend/guardian is defective.
- Confusing abatement (death of party) with dismissal for non-prosecution.
- Assuming misjoinder of causes of action requires separate suits.
Rule of thumb
Ask of each person: Does the decree need them? If yes, they are necessary; if the decree can work without them but their presence helps, they are proper. Only necessary-party non-joinder is fatal.
Worked example
A sues B for specific performance of a contract to which C is also a signatory. C is a necessary party; failure to join C exposes the suit to dismissal for non-joinder. If, however, C is merely a witness whose presence clarifies facts, C is at most a proper party and non-joinder is not fatal.