Lsp IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT PETITION NO. 596 of 2009 WITH WRIT PETITION NO. 597 OF 2009 Khemchand S. Chawla & anr. ..Petitioners V/s. Nana Mahadu Shendkar & anr. ..Respondents ALONGWITH WRIT PETITION NO. 603 OF 2009 Khemchand S. Chawla & anr. ..Petitioners V/s. Dhanaji Kashinath Shendkar & anr. ..Respondents ALONGWITH WRIT PETITION NO. 604 OF 2009 Khemchand S. Chawla & anr. ..Petitioners v/s. Suresh Mahesh Shendkar & anr. ..Respondents ALONGWITH WRIT PETITION NO. 638 OF 2009 Khemchand S. Chawla & anr. ..Petitioner V/s. Santosh Kashinath Shendkar & anr. ..Respondents Mr. Vivek Kantawala with Mr. Ajit N. Makhijani i/b. M.M.Legal Associates for the petitioners in all petitions. Mr. V.R.Tripathi for respondent no.1 in all petitions. CORAM CORAM CORAM : A.M.KHANWILKAR,J. : A.M.KHANWILKAR,J. : A.M.KHANWILKAR,J. DATED DATED DATED : 22ND JANUARY, 2009 : 22ND JANUARY, 2009 : 22ND JANUARY, 2009 P.C. . Heard Counsel for the parties. 2 2. Rule. Rule made returnable forthwith, by consent. 3. Mr. V.R.Tripathi waives notice for the contesting respondent no.1 in all petitions. 4. As short question is involved, petitions are taken up for final disposal forthwith, by consent. 5. All these petitions can be disposed of by this common order. In all these petitions the order passed by the Trial Court dated 20.11.2008 in five different suits is put in issue. By the said order the Trial Court has allowed the plaintiff in the respective suits to amend the plaint. In substance, by way of amendment, the plaintiff seeks further relief of declaration that he was tenant also in respect of land underneath the suit structure. The original suit filed by the plaintiff is for declaration that he is a tenant in relation to suit structure specified in the suit. No case has been made out in the original plaint that he was also tenant in relation to land underneath the suit structure. That claim was available to the plaintiff when the suit was instituted. That claim has not accrued on account of the subsequent event of fire which destroyed the suit premises. If it is so, the rigorous of Order II Rule 2 of Civil Procedure Code will come into play. The Trial Court has overlooked this crucial 3 aspect of the matter. The claim of tenancy with regard to suit land is a separate claim and independent of the claim that the plaintiff is tenant in the suit premises which incidentally are destroyed by fire. It is well established position that if the suit premises are destroyed by natural calamity, the tenancy would come to an end. Only with a view to get over that position and pursue the suit already instituted, if the plaintiff desires to ask for further relief that he is and was tenant also in respect of land underneath the suit structure, it is imperative to examine as to whether this new claim is permissible in view of the mandate of Order II Rule 2 of Civil Procedure Code. The effect of the said provision is that if any claim though available was not mentioned in the suit as filed, it is deemed to have been given up or waived and cannot be set up at a subsequent point of time. 6. On this reasoning alone the impugned orders are set aside. Instead of deciding that question for the first time in this Writ Petition, I would think it appropriate to relegate the parties before the Trial Court by restoring the applications for amendment moved by the plaintiff to be reconsidered on its own merits keeping in mind the rigorous of order II Rule 2 of Civil Procedure Code. All questions in that behalf are left open. 4 7. The parties shall appear before the Trial court on 2nd February, 2009 on which date the restored applications will proceed for hearing in the light of observations made in this order. Indeed, the said applications will have to be decided in accordance with law and the settled legal position in relation to provisions of Order II Rule 2 of Civil Procedure Code. [A.M.KHANWILKAR,J.] [A.M.KHANWILKAR,J.] [A.M.KHANWILKAR,J.]