Bombay High Court
Shri Dhiresh Hanmantrao Deshmukh vs Occupation Interior Designer on 25 November, 2011
Bench: R. M. Savant
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lgc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 9521 OF 2011
Shri Dhiresh Hanmantrao Deshmukh ]
Age about 36 years ]
Occupation : Agriculturist, ]
R/o. Pusegaon, Tal Khatav ]... Petitioner
District Satara ](Orig. Opponent)
versus
Sou.Shital Dhiresh Deshmukh ]
Age about 32 years ]
Occupation Interior Designer ]
R/o. C/o. Shri Ravindra Baburao
ig ]
Chavan, 30, Magazine Colony, ]... Respondent
Sadar Bazar Camp, Satara ] (Orig. Applicant)
Mr.Dilip Bodke for the Petitioner.
Mr.Amit Shete i/by Mr. Amit Borkar for the Respondent.
CORAM : R M SAVANT, J.
DATE : 25th November 2011
ORAL JUDGMENT
1 Rule, with consent of the parties made returnable forthwith and
heard.
2 The above Petition takes exception to the order dated 21/9/2011
passed by the II Joint Civil Judge, Senior Division, Satara by which order the
Application Exhibit 35 for amendment of the plaint so as to delete the relief
sought in respect of the immovable properties in H.M.P. No.332 of 2010 came
to be allowed.
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3 It is not necessary to burden this Court with unnecessary facts in
view of the limited controversy that is involved.
4 It is required to be noted that the said HMP No.332 of 2010 has
been filed by the Respondent herein for divorce, as also a claim in respect of
the immovable properties. The Respondent had moved an application Exhibit
29 for being permitted to delete the prayer for relief in so far as immovable
properties was concerned and for filing separate proceedings for the same,
which according to her, could be decided expeditiously. On the said Application
Exhibit 29 the trial Court has passed an order dated 29/8/2011 to the
following effect "to put for order". It appears that thereafter the said
Application was not dealt with. However, the Respondent filed an Application
Exhibit 35 for amendment of the plaint so as to delete the prayer in so far as
immovable properties are concerned. The said Application Exhibit 35 came to
be allowed by the impugned order and Para 24(C) relating to the immoveable
properties came to be deleted.
5 Having regard to the Order 2 Rule 2 and Order 2 Rule 3 of the
Code of Civil Procedure, the said Application Exhibit-35 could not have been
decided without deciding Exhibit 29 which can be said to be an application
filed by the Respondent in terms of the Order 2 Rule 2 of the CPC.
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6 In so far as relinquishing or giving up any claim in the suit is
concerned, the same is governed by the provisions as contained in Order 2 Rule
2 and Order 2 Rule 3 of the CPC. The trial Court has erred in deciding the said
Application Exhibit-35 by merely treating it as one filed under Order 6 Rule 17
of the CPC. Relinquishing or giving up the prayer if permitted or not permitted
has a consequence for the parties, and therefore, it was necessary for the trial
Court to adjudicate at least both the Applications Exhibit 29 and Exhibit 35
together if not Exhibit 29. In that view of the matter, the impugned order
dated 21/9/2011 passed on Exhibit 35 is required to be quashed and set aside
and is accordingly quashed and set aside.
7 In view of the setting aside of the said order, even if the
amendments are carried out in the plaint, the same would have no
consequence. The trial Court is hereby directed to hear the Applications Exhibit
29 and Exhibit 35 together on the touchstone of Order 2, Rule 2 and Order 2
Rule 3 of the Code of Civil Procedure. On remand the trial Court to hear and
decide the said applications within a period of six weeks of the first appearance
of the parties. Rule is accordingly made absolute in the aforesaid terms with
the parties to bear their respective costs.
[R.M.SAVANT, J]
