On account of mis-joinder or non-joinder of parties (other than non-joinder of a necessary party),…

Order I rule 9 of the Code of Civil Procedure, 1908 provides that no suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the court may deal with the matter in controversy so far as regards the rights and interests of the parties actually before it; its proviso excepts only the non-joinder of a necessary party. Outside that exception the suit "cannot be dismissed" on this ground; the court may instead add or strike out parties under Order I rule 10(2). It is therefore wrong to say that the suit is liable to be dismissed, and dismissal is not left to the court's discretion.