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 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.
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.
IN THE HIGH COURT OF BOMBAY
Writ Petition No. 13138 of 2016
Decided On: 08.01.2018
Nikita Manohar More and Ors. Vs. Nitesh Pundlik Patil
Hon'ble Judges/Coram:
Dr. Shalini Phansalkar Joshi, J.
Citation: 2018(2) MHLJ 378
