Order 2

Order Details: Notice of Motion
Pdf Text: 1 NM 1532-18 IN L C SUIT 2406-15
MHCC010047642018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 1532 OF 2018
IN
L C SUIT NO. 2406 OF 2015
Tarun Mithu Lalwani ] ...Plaintiff.
Versus
Moti A. Chainani & Others ]…Defendants.
Appearance:
Ld Advocate Khanduri for the plaintiff.
Ld Advocate Thorat for defendant No.1.
Ld Advocate Mangal Kadam for defendant No.4.
CORAM : K.P. KSHIRSAGAR
JUDGE, (C.R.NO.08)
DATE : 15/7/2022
ORAL ORDER
1) Plaintiff has taken out present Notice of Motion for grant
of leave under Order 2 Rule 2(3) of Code of Civil Procedure for filing
the separate suit for possession and declaration in respect of suit
premises.
2) Perused the notice of motion, affidavit in support of notice
of motion, affidavit in reply of defendant No.1, plaint and documents
annexed therewith. Heard argument advanced by Ld Advocate for
plaintiff and Ld Advocate for defendant No.1 and 4. Defendant No.2
and 3 were absent and they failed to advance their arguments,
therefore they could not be heard.
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3) Ld Advocate for plaintiff argued that at the time of
institution of the present suit plaintiff was having financial problems
and therefore plaintiff filed the present suit for simplicitor injunction
though plaintiff is entitled for further relief of possession and
declaration. Plaintiff being heir and legal representative of Padma H.
Henani to whom the suit premises was allotted by MHADA is entitled
for the possession of suit premises. Leave under Order 2 Rule 2(3) of
the Code of Civil Procedure can be sought at any time before passing of
decree in first suit. Therefore, Ld Advocate for plaintiff prayed that
leave under Order 2 Rule 2(3) of Code of Civil Procedure be granted
and notice of motion be made absolute. Ld Advocate for plaintiff kept
his reliance on the following judgment:-
“Canning Miyra Phoenix Limited & Ors vs Popular Constructions & Ors,
MANU/MH/0768/1994 wherein it is observed by Hon'ble Bombay
High Court that, “plaintiff can seek leave of court under Order 2 Rule
2(3) of Code of Civil Procedure at any time before the date of decree in
the first suit. The leave to institute second suit can be sought at any
time during the pendency of the first suit but such leave must be
obtained prior to the date of institution of the second suit. The question
as to whether leave should be granted under Order 2 Rule 2(3) of Code
of Civil Procedure will depend upon the facts and circumstances of
each case and the court will exercise jurisdiction after considering all
the circumstances including whether the application is bonafide and
whether it is likely to cause any prejudice to the defendant. The court
would grant leave provided plaintiff seeking leave for any relief
omitted and not in respect of any portion of claim which was omitted
or intentionally relinquished at time of institution of first suit”.
Court has gone through the observations therein.
4) On the other hand Ld Advocate for defendant No.1 argued
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that suit was instituted by the plaintiff in year 2015 and on the first
date defendant No.1 had filed application for disposing the suit and
notice of motion in terms of the prayers of the plaintiff. Moreover,
plaintiff was aware as to reliefs he is entitled to sue at the time of
institution of present suit. However, inspite of same plaintiff had not
taken out this notice of motion at earliest and there is delay of more
than 3 years in taking out present notice of motion. The conduct of the
plaintiff is not bonafide and there are delay and latches on the part of
plaintiff. Therefore, Ld Advocate for defendant No.1 submitted that the
facts of the judgment relied by plaintiff cited supra are different than
the facts of the present case and prayed that present notice of motion
be dismissed.
5) From the perusal of the plaint it appears that plaintiff has
filed present simplicitor suit for injunction restraining defendants from
transferring, selling, alienating or creating third party interest in the
suit premises. From the perusal of plaint it appears that plaintiff has
not claimed further relief of possession and declaration. Admittedly,
there is no pleading in the plaint for grant of leave for suing for said
substantial reliefs afterwards.
6) From the record it appears that on 12/4/16 defendant
No.1 had taken out application Exh.3 for disposing of the present suit
on the basis of his statement that neither he nor his family members
are intending to transfer or alienate or to create third party interest in
the suit premises. From the application Exh.3 it appears that defendant
No.2 has categorically mentioned therein that the present suit is
simplicitor for injunction and plaintiff has not sought any leave under
Order 2 Rule 2(3) of Code of Civil Procedure. After filing of Application
Exh.3 the plaintiff neither immediately applied for amendment of
plaint to incorporate substantial reliefs nor applied for grant of leave
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under Order 2 Rule 2(3) of Code of Civil Procedure immediately or
within reasonable time.
7) The ratio in case of Canning Miyra Phoenix Limited & Ors
vs Popular Constructions & Ors cited supra relied by the plaintiff is not
disputed. However, in the present matter it is the contention of the
defendant No.1 that the present notice of motion is not bonafide and it
is likely to cause prejudice to the defendant No.1.
8) From the matter on record and arguments of the parties
prima facie it appears that the plaintiff was aware of the reliefs to
which he is entitled at the time of institution of the suit itself. As per
plaintiff due to financial difficulty he did not sue for further relief of
possession and declaration for which he is entitled. From the matter on
record prima facie it appears that the omission for seeking relief of
possession and declaration in the present suit by the plaintiff is not
accidental. Moreover, as per the application Exh.3 filed by defendant
No.1 on 12/4/16 it was pointed out by defendant No.1 that leave
under Order 2 Rule 2 (3) of Code of Civil Procedure is not sought by
plaintiff for substantial relief in respect of suit premises. It appears that
plaintiff did not apply for amendment of the plaint for incorporating
substantive relief of possession and declaration nor applied for leave
under Order 2 Rule 2(3) of Code of Civil Procedure immediately.
Plaintiff taken out the present notice of motion on 21/3/18. As such
there is delay in taking out present notice of motion also. Moreover, in
the present notice of motion plaintiff has not prayed for permission to
institute separate suit for the substantial reliefs and plaintiff has prayed
for leave under Order 2 Rule 2 (3) only. As such it appears that plaintiff
is not intending to incorporate the prayer for substantial relief in
present suit or to file separate suit against defendants for substantial
relief immediately. Therefore, considering the matter on record and the
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circumstances the present notice of motion does not appear to be
bonafide and is likely to cause prejudice to the rights of defendant
No.1. As such facts of the present case are different than the facts of
case of Canning Miyra Phoenix Limited & Ors vs Popular Constructions
& Ors cited supra. Moreover, considering the circumstances of the
present case as present notice of motion does not appear bonafide it
will not be appropriate to exercise jurisdiction under Order 2 Rule 2(3)
of Code of Civil Procedure at such belated stage.
9) Considering the matter on record and above discussion as
the present notice of motion is not bonafide and is likely to cause
prejudice to the defendant, the court find that present notice of motion
is liable to be dismissed. Hence, court proceeds to pass the following
order:-
ORDER
1) Notice of motion No. 1532 of 2018 is dismissed.
2) Notice of motion No. 1532 of 2018 is disposed off accordingly.
Date : 15/7/2022
(Shri. K.P. Kshirsagar)
Judge
City Civil Court,
Gr. Mumbai.
Dictated & typed on : 15/7/2022.
Checked on :16/7/2022.
Corrected & signed on :18/7/2022.
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