Bombay High Court
Smt. Nikita Manohar More And Anr vs Shri. Nitesh Pundlik Patil on 8 January, 2018
Bench: Dr. Shalini Phansalkar-Joshi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 13138 OF 2016
1. Smt.Nikita Manohar More ]
Age 28 years, Occ.Agricultural & Household ]
]
2. Ms.Priyanka Baban Patil ]
Age 23 years, Occ. Education ]
Both R/o. Shri Padmanath Temple Road, ]
Village Tembhode, ]
Taluka : Palghar, District : Palghar ] Petitioners
V/s.
Nitesh Pundlik Patil ]
Age 25 years, Occ.Service ]
R/o. Tiwari Compound, Boisar Road, ]
Palghar, Taluka : Palghar, District Palghar ] Respondent
• Mr.Prajakt M. Arjunwadkar for the Petitioners.
• Mr.Ashok Pande for the Respondent.
CORAM : DR.SHALINI PHANSALKAR-JOSHI, J.
DATE : 8th JANUARY, 2018.
ORAL JUDGMENT :-
1] Rule. Rule made returnable forthwith. Heard finally with
the consent of learned counsel for the Petitioners and the Respondent.
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2] By this Writ Petition filed under Article 227 of the
Constitution of India, the Petitioners are challenging the order dated 9 th
September, 2016 passed by the Court of Jt. Civil Judge Junior Division,
Palghar, thereby rejecting the Petitioners' application at Exhibit-7 filed
under Order-2 Rule-2(3) of Civil Procedure Code. The Petitioners were
constrained to file the said application as the Respondent was
intending to create third party interests in the joint family properties of
the Petitioners. Hence, the Petitioners wanted to seek partition and
separate possession of their share in the suit properties along with
relief of injunction restraining the Respondent from alienating the suit
property. However, in order to file a suit for partition and separate
possession of their share in the suit property, the Petitioners wanted to
collect various documents but as the Petitioners had apprehension that
meanwhile the Respondent may create third party interests in the suit
property, by way of urgent relief, the Petitioners had filed only the suit
simpliciter for injunction and in order to reserve their right to file suit
for partition, they filed an application at Exhibit-7 under Order-2 Rule-
2(3) C.P.C., seeking leave of the trial Court to omit that relief in this
suit.
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3] The trial Court, however, rejected the said application on
the count that the Petitioners are not the coparceners and therefore,
they are not eligible for filing the suit for partition in the capacity of
coparceners. Therefore, the Petitioners are not entitled to get the leave
as contemplated under Order-2 Rule-2(3) of C.P.C..
4] It is needless to state that on the face of it also, the
impugned order passed by the trial Court cannot be sustainable in law.
Whether the Petitioners are coparceners or not, whether they are
eligible for partition of suit properties or not, all these questions cannot
be relevant for deciding the application filed under Order-2 Rule-2(3)
of C.P.C., if one considers the scope of the said provision, which can be
reproduced for ready reference, as follows:
"Order - 2. Frame of Suit
Rule - 2. Suit to include the whole claim -
(1) Every suit shall include the whole of the claim
which the Plaintiff is entitled to make in
respect of the cause of action; but a plaintiff
may relinquish any portion of his claim in
order to bring the suit within the jurisdiction
of any Court.
(2) Relinquishment of part of claim - Where a
plaintiff omits to sue in respect of, or
intentionally relinquishes, any portion of his
claim, he shall not afterwards sue in respect
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of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs -
A person entitled to more than one relief in
respect of the same cause of action may sue
for all or any of such reliefs, but if he omits,
except with the leave of the Court, to sue for
all such reliefs, he shall not afterwards sue for
any relief so omitted."
5] Thus, this provision mandates that the suit should include
the whole claim and all the reliefs to which the Plaintiff is entitled and
if the Plaintiff omits to sue in respect of any portion of his claim or the
relief, then he shall not afterwards sue in respect of the portion and
relief so omitted or relinquished. Sub-Clause 3 of Rule 2 of Order 2 of
C.P.C., however, provides that if the Plaintiff wants to omit such claim
or relief, he has to do so with the leave of the Court. Otherwise he shall
not be entitled to sue for such relief or claim afterwards.
6] Thus, it follows that, for deciding the application for leave,
filed by the Plaintiff under Order-2 Rule-2(3) of C.P.C., the scope of
inquiry is very limited to the extent of deciding whether the Plaintiff
has given sufficient cause or explanation for not claiming that relief in
this suit. The Court has only to consider whether the relief sought to be
omitted could have been asked in this suit itself. No other inquiry is
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warranted at all in deciding such application. The question whether the
Plaintiffs are entitled for the said relief, is totally beyond the scope of
the inquiry in this application, as the said question will arise in
subsequent suit.
7] In the present case, by filing the application under Order-2
Rule-2 of C.P.C., the Petitioners wanted only to reserve their right of
filing a subsequent suit for partition. The Petitioners had also given the
explanation as to why they could not ask for the relief of partition in
this suit itself. The trial Court should have therefore considered that
explanation only, to ascertain whether it is sufficient or not, in the light
of the urgency made out by the Petitioners for filing the present suit
seeking relief of injunction only, though they were entitled for the relief
of partition and separate possession also. The trial Court has, however,
travelled beyond this scope of enquiry and unnecessarily entered into
the aspect as to whether the Petitioners are coparceners or not and
whether they are eligible for getting relief of partition or otherwise. The
impugned order, passed by the trial Court, therefore, being against the
express provisions of law, it cannot be sustained, hence quashed and
set-aside.
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8] Accordingly, the Writ Petition is allowed. The application
filed by the Petitioners below Exhibit-7 is allowed. The permission is
granted to the Petitioners to omit the relief of partition and separate
possession in this suit, reserving that relief to be sued subsequently, in
view of the provisions of Order-2 Rule-2(3) of C.P.C..
9] At this stage, it is clarified that this Court is not at all
entering into the merits of the claim of the Petitioners as to whether
they are coparceners and whether they are entitled to file the suit for
partition, as reserving the Petitioners right to claim such relief does not
mean that the Court has held the Petitioners entitled or eligible to get
that relief.
10] Writ Petition is disposed off in above terms.
Rule is made absolute.
[DR.SHALINI PHANSALKAR-JOSHI, J.]
