On this page
Order I Rule 10(2) CPC: power to strike out or add parties
Order I Rule 10(2) of the Code of Civil Procedure, 1908 gives the Court judicial discretion, at any stage of the proceedings, to strike out the name of a party who has been improperly joined and to add a person whose presence is required for effective and complete adjudication of the questions involved in the suit.
The Supreme Court has distinguished a necessary party from a proper party. A necessary party is one without whom no effective decree can be passed; a proper party is one whose presence helps the Court completely and adequately decide the dispute even though a decree could technically be made in that person's absence. See Mumbai International Airport (P) Ltd. v. Regency Convention Centre & Hotels (P) Ltd., (2010) 7 SCC 417.
In a specific-performance suit or another proceeding involving rights of several persons, the Court may therefore examine the nature of the relief, the person's legal interest, the pleadings already on record and the possible effect of deletion before exercising discretion under Order I Rule 10(2).
When an application for deletion may be appropriate
An application may be considered where, for example, a person was joined without authority or consent, was mistakenly arrayed, has no subsisting interest in the relief claimed, or is otherwise neither a necessary nor a proper party. The supporting affidavit should state the material facts personally known to the deponent and explain why continuation of that person as a party is unnecessary or improper.
Specimen Affidavit for Deletion of Party Name
IN THE COURT OF __________________________ AT __________________
CIVIL SUIT / CASE NO. ________ OF 20____
IN THE MATTER OF:
______________________________ & Ors. Plaintiff(s) / Petitioner(s)
VERSUS
______________________________ & Ors. Defendant(s) / Respondent(s)
AFFIDAVIT IN SUPPORT OF APPLICATION UNDER ORDER I RULE 10(2) OF THE CODE OF CIVIL PROCEDURE, 1908
I, , son/daughter/wife of , aged about years, residing at , do hereby solemnly affirm and state as follows:
1. I am presently arrayed as Plaintiff/Petitioner/Defendant/Respondent No. ___ in the above matter and am competent to swear this affidavit. I am acquainted with the facts stated below.
2. My name has been included as a party in the above proceeding. The circumstances in which I came to be so arrayed are as follows: .
3. I state that I did not authorise the institution/prosecution of the proceeding on my behalf / I have been mistakenly or improperly joined / I have no subsisting legal interest in the relief claimed, for the following reasons: .
4. I further state that my presence is not necessary for the Court to effectually and completely adjudicate upon the questions involved in the proceeding and no substantive relief is claimed by me / against me that requires my continued presence as a party.
5. The deletion of my name will not prevent the Court from determining the real controversy between the remaining parties, nor will it prejudice any subsisting legal right requiring adjudication in this proceeding.
6. The facts and documents relevant to this request, including any absence of authority, settlement, refund, relinquishment, mistake in joinder or other material circumstance, are set out in the accompanying application and may be read as part of this affidavit.
7. In these circumstances, it is just and proper that this Hon'ble Court may be pleased to strike out/delete my name from the array of parties under Order I Rule 10(2) of the Code of Civil Procedure, 1908, subject to such terms as the Court considers appropriate.
DEPONENT
VERIFICATION
I, the above-named deponent, verify that the contents of paragraphs 1 to ___ are true to my personal knowledge, paragraphs ___ to ___ are based on records/information believed by me to be true, and that nothing material has been concealed therefrom.
Verified at __________________ on this ___ day of __________, 20___.
DEPONENT
Attestation: To be completed in the manner required by the applicable court rules and law governing administration of oaths/affirmations.
Practical filing notes
The affidavit is normally filed with the application seeking deletion/striking out of the party. The application should identify the existing party number, state the precise reason for deletion, explain why the person is not a necessary or proper party, and contain an appropriate prayer for amendment of the cause title and consequential directions.
If deletion is connected with a settlement, refund, lack of authority, mistake in joinder or other document-based fact, the relevant document should ordinarily be referred to accurately and annexed where procedurally appropriate. Avoid allegations that are unnecessary to decide the joinder question.