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DISTRICT COURT (CIVIL PROCEDURE) RULES, 2004

 

      Rule        

 

ORDER 9

PARTIES

 

Suit on behalf of others

1. (1) If a plaintiff sues, or a defendant is sued in a representative capacity, this fact shall be stated on the writ.

(2) The Court may order any of the persons represented to be made a party either instead of or in addition to the previously existing parties.

Joint ground for suit

2. Where a number of persons have a joint ground for instituting a suit, all those persons shall be made parties to the suit unless another enactment provides or the Court determines otherwise.

Where joint interest, parties may sue or defend for others

3. Where a number of persons have the same interest in one suit, one or more of those persons may be authorised to sue or to defend the suit for the benefit  and on behalf  of all parties interested

Joint and several demand

4. (1) Where a person has a joint and several demand against a number of persons either as principals or sureties, that person may proceed against anyone or more of that number of persons severally, or jointly or jointly and severally.

(2) Where a defendant claims contribution, indemnity, or other remedy or relief against another person, the defendant may apply for that person to be made a party to the suit.

Non-joinder

5. (1) Where it appears to the Court before or at the hearing of a suit that all the persons who

(a) are entitled to some share or interest in the subject matter (b) claim some share or interest in the subject-matter of the sui or

(c) are likely to be affected by the result

have not been made parties, the Court may adjourn the hearing of the suit to a future date to be fIxed by the Court, and direct that those persons be made either plaintiffs or defendants in the suit, as the case may be.

(2) Where the Court adjourns the hearing of a suit under subrule (1), the Court shall issue a notice to the persons who are to be joined and the notice shall be served in

(a) the manner provided by the rules for the service of a writ of summons, or

(b) in any other manner that the Court may direct,

and on proof of due service of the notice the person served shall be bound by all proceedings in the cause.

(3) Where before or at the hearing of a suit, a person who is not a party to the suit realises that the suit affects or is likely to affect that person's interest, that person may apply to the Court to be joined either as a plaintiff or a defendant as appropriate.

Misjoinder of parties

6. The Court may at any stage of the proceedings, and on terms that appear to the Court to be just, order that the name of a party who has been improperly joined whether as a plaintiff or as a defendant be struck off.

 

Distinct causes of action in one writ

7. Where a writ states two or more distinct causes of action by and

, against the same parties, and in the same rights, the Court may, either before or at the hearing, order the trials to be held separately and make an order for adjournment and costs as justice requires, if it appears inexpe­dient to try the different causes together.

Action open to defendant

8. A defendant who alleges that the plaintiff has joined two or more distinct causes of action which cannot be conveniently disposed of together in the same action may at any time apply to the Court for an order which confines the action to the causes of action that can be conve­niently disposed of together.

Power of Court to exclude

9. Where on the hearing of the application in rule 8 it appears to the Court that the causes of action in the suit cannot all be conveniently disposed of together, the Court may order any of the causes of action in the suit to be excluded, and consequential amendment to be made.

Misjoinder of suits

10. Where a writ states two or more distinct causes of action, (a) but not by and against the same parties, or

(b) by and against the same parties but not in the same rights, the writ may be amended or struck out, on the application of a defendant, but the party who instituted the suit may apply to the Court to have the case if struck out, to be restored.

Consolidation of causes

11. (1) Causes of action on the same subject matter but involving different parties pending in the same Court may by order of the Court be consolidated, and the Court that makes the order shall give any directions that are necessary for the conduct of the consolidated actions.

(2) Causes of action on the same subject matter but involving different parties pending in various Courts may on application of any of the parties to any of the Courts, be referred to the Supervising High Court Judge of the magisterial district for an order of consolidation of the various causes of action and for directions as to the conduct of the consolidated actions.

 

Court to appoint guardians to infant or mentally challenged defendants 12. Where a defendant defaults in answering or defending a suit after service of the writ, and it appears to the Court that the defendant is an infant or a mentally challenged person, the Court,

(a) on the application of the plaintiff, or

(b) of its own motion,

if it considers it appropriate, may by an order appoint a fit person to be guardian of the defendant for the purposes of the suit, and to defend the suit.

Notice and service of notice of appointment of guardian

13. Before the Court makes the order under rule 12 it shall cause a notice that it considers reasonable to be served on the person with whom, or under whose care the defendant is but in the case of an infant who

                (a) does not reside with the guardian, or

(b) is not under the care of the guardian,

the Court, unless there is good reason to do otherwise, shall cause the notice to be served on the guardian.

Suits by infants and mentally challenged persons

14. An infant or a mentally challenged person may sue as plaintiff by that infant's or mentally challenged person's guardian ad litem or next friend, subject to terms that relate to the liabilities for costs of the guardian or next friend as the Court considers just.

Change of parties by reason of death or bankruptcy

15. (1) Where a cause of action survives after the death or bankruptcy of a party to the action, the action shall not abate by reason only of the death or bankruptcy.

(2) Where at any stage of the proceedings the interest or liability of a party is assigned or transmitted to or devolves on another person, the Court may, for the effective and complete determination of the matters in dispute, order that other person to be substituted for the party whose interest has been assigned or transmitted or has devolved.

(3) An application for an order under this rule may be made ex

(4) A person who is served with an order made ex parte under this rule, may within fourteen days after the service apply to the court to dis­charge or vary the order.


           (5) Where an order is made under this rule for a person to be made a party and that person is already a party on the other side of the record, the order shall be treated as containing a direction that the person shall cease to be a party on that other side.

(6) When an order is made under this rule for a person to be made a party and that person is already on the same side but in a different capacity, the order may contain a direction that requires that person to cease to be a party in that previous capacity.

(7) An order under this rule shall be noted in the Cause Book by the Registrar and after it is noted, the Registrar shall serve the order

(a) on every other party to the proceedings or on any person who becomes or ceases to be a party by virtue of the order; and (b) with a copy of the writ on any person who becomes a defendant.

(8) A person ordered under this rule to become a party shall not become a party until the order is served on that person and where that person becomes a party, all things done in the course of the proceedings before that person becomes a party shall continue to be valid.

(9) A person ordered to become a party shall be served with all previous processes at the cost of the person who obtains the order.

Failure to proceed after death

16. (1) Where the cause of action survive'), after the death of a plaintiff and an order for substitution is not made under rule 15 (2), the defendant may apply to the Court for an order which requires the action to be proceeded with within the time specified in the order or otherwise be struck out.

(2) The Court shall not make an order under subrule (1) unless it is satisfied that due notice of the application has been given to the personal representative, the customary successor or head of family of the deceased plaintiff and to any other interested person who, in the opinion of the Court, should be notified.

(3) The costs of the application under subrule (1) shall be borne by the estate of the deceased plaintiff.

 

 

 

 

 

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