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Report No. 27

Order II, rule 6

The scope of this rule has been widened, so as to give the court power to order separate trial of causes of action whose joinder may cause embarrassment1 or delay Cf. the R.S.C.2

1. As to embarrassment, see Ramaswamy v. Marimuthu, AIR 1928 Mad 764.

2. See R.S.C. (Revision) 1962, Order 15, rule 5(1), latter half.

Order II, rule 8 (Local Amendments) and separate trial in case of misjoinder

1. The rules regarding joinder of causes of action are contained in Order II, rules 3, 4 and 5. Where there is a breach of these rules resulting in a misjoinder of causes of action, an objection can be raised on that ground, provided it is taken at the earliest opportunity. When such an objection is taken, the question arises-what course the court should adopt.

2. Usually, the court would not dismiss the suit, but should give the plaintiff an opportunity to amend the plaint and proceed with the claim in respect of one of the causes of action1-2-3-4.

3. Some High Courts have inserted a specific rule on the subject5 as Order II, rule 8-to the effect that where an objection on the ground of misjoinder, duly taken, is allowed by the Court, the plaintiff shall be permitted to select the cause of action with which he will proceed and shall amend the plaint by striking out the remaining causes of action:

Where the plaintiff has so selected the cause of action, the Court shall pass an order giving him time within which to submit the amended plaint (and for making up court-fees where necessary).

If he does not comply with the order, the Court is to proceed as provided in Order VI, rule 18, and the Court-fees Act.

4. The question whether such a provision should be inserted in the Civil Procedure Code has been considered. It is felt that there is no need for it.

5. In cases where the joinder, though proper under Order II, rules 3, 4 and 5, is inconvenient, the Court can, under Order H, rule 8, order a separate trial. That rule would not, of course, apply to misjoinder6-7.

1. Govindanathan v. Anjaneya, AIR 1950 Mad 760 (761) (Mack J.).

2. Satya Narayan Banerjee v. Radhe Nath Das, ILR (1942) 1 Cal 235: AIR 1942 Cal 69 (70).

3. Bhondu v. Raj Singh, AIR 1948 All. 60 (62).

4. Aldridge v. Barrow, ILR 34 Cal 662.

5. See Order 2, rule 8, inserted in Punjab, Kerala and Rajasthan.

8. Corporation v. Radha, AIR 1952 Cal 222.

7. Muthappa v. Muthu, ILR 27 Mad 80 (84).



Code of Civil Procedure, 1908 Back




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