kbp 1 4151-09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBA CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4151 OF 2009 Future Communications Ltd. ..Petitioners Vs. Hansa Motor Works & Anr. ..Respondent ......... Mr.Ketan R.Parekh i/b.M/s.K.R.Parekh & Co., for petitioners. Mr.S.G.Mittal for the respondents. ....... CORAM : A.S.OKA, J.. DATE : 15 th OCTOBER, 2009. P.C. : 1] The submissions of the learned counsel for the parties were heard on earlier date. The petitioner is the original plaintiff and respondents are original defendants. The petitioner filed a suit simplicitor for injunction. The first prayer in the suit is for permanent injunction restraining the respondents from interfering with alleged possession of the petitioner over the suit property without following due process of law. The second prayer is for injunction restraining the respondent from disconnecting and/or from interfering with electric and water supply to the suit premises. The suit was filed in March, 2009. In paragraph 10 of the plaint, the petitioner has stated that the suit is filed as there was grave kbp 2 4151-09.sxw urgency, therefore, an averment is made that the leave of the court under Sub- Rule 3 of Rule 2 of Order 2 will be sought to file a separate suit for additional relief in respect of same cause of action. A separate application was made for grant of leave. The said application has been rejected by the trial Court by the impugned order. 2] Learned counsel for the petitioner pointed out that leave was sought by filing an application along with the suit. The said application was considered by the court even before the suit was registered. He submitted that leave ought to have been. Learned counsel for the respondent supported the impugned order and submitted that the learned trial Judge was justified in rejecting the prayer. 3] I have given careful consideration to the submissions. It will be necessary to refer Rule 2 of Order 2 of the said Code which reads thus:- "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 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 kbp 3 4151-09.sxw 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. The normal Rule is that every suit shall include whole of the claim which plaintiff is entitled to make in respect of a cause of action and if the plaintiff omits to sue in respect of any claim he is precluded from suing for the claim afterwards. As per sub-rule 3, a plaintiff can always seek a leave of the court to sue subsequent for remaining relief in respect of said cause of action. In the present case, the petitioner filed a suit simplicitor for injunction because he was desirous of applying for ad-interim injunction. The petitioner has stated that he wants to file substantive suit claiming declaration as title. In a case like this where there is threat to possession of the plaintiff, surely such plaintiff can apply for leave to file a separate suit claiming substantive relief for declaration. Sub-Rule 3 is enacted precisely to take care such situation. A suit for declaration of title requires comprehensive pleadings In the circumstances, this was a fit case for grant of leave and the trial Court ought to have granted the leave. 4] Hence, following order is passed:- (a) The impugned judgment and order dated 1 st April, 2009 in so far as it relates to the rejection of the prayer for grant of leave is hereby set aside. Leave is granted to the petitioner, as prayed for under Sub-Rule 3 of Rule 2 of Order 2 of the Code of Civil Procedure, kbp 4 4151-09.sxw 1908. (b) All contentions of the parties on merits of the pending suit are expressly kept open ( A.S.OKA, J. )