1 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.4570 OF 2009 Rafiullah A.A.Khan ...Petitioner vs. Mohammed Jaish Nazir Ahmed Shaikh ...Respondent Ms Trupti Gohil i/b Mr.Jayant Gohil for the petitioner Mr.Suresh Gole for respondent no.1 CORAM :A.S.OKA,J. DATE : MARCH 30, 2010 P.C. 1 The submissions of the learned counsel for the parties were heard on the last date. The parties were put to notice that the petition will be taken up for final disposal at admission stage. 2 The petitioner is the plaintiff and the respondent is the defendant. The petitioner has filed the present suit for injunction restraining the respondent from disturbing peaceful use and occupation of the petitioner in respect of the suit shop more particularly described in the plaint. It is alleged in the plaint that the respondent had approached the petitioner and shown his willingness to sell the suit shop. According to the case of the petitioner, total consideration was fixed at Rs. 10,50,000/- and the entire amount was paid by the petitioner in cash. According to the case of the petitioner, in March 2004, the suit shop was purchased by him from the respondent under the agreement of assignment. The case of the petitioner is that he has paid the entire amount of consideration and he has been placed in possession. According to the case of the petitioner, in July 2007, the respondent visited the suit 2 shop and further demanded a sum of Rs.20,00,000/- from the petitioner on the ground that the prices of the shops in the area have been increased. The case is that a threat of dispossession was given to the petitioner by the respondent and therefore, the petitioner was forced to file the suit. 3 In the said suit, an application was made by the petitioner for grant of leave under sub rule 3 of rule 2 of Order II of the Code of Civil Procedure,1908 (hereinafter referred to as the said Code). It was contended in the said application that the leave be granted to the petitioner to file a separate suit on the same cause of action for declaration of ownership as well as damages. The said application was opposed by the respondent. By the impugned order, the said application has been rejected by the learned trial Judge. 4 The learned counsel for the petitioner submitted that the application for grant of leave has been rejected on erroneous grounds. It is pointed out that the learned trial Judge observed that the petitioner has not specifically pleaded in the plaint the subsequent relief and that the said subsequent relief would be on a different cause of action. She pointed out that the cause of action for filing the suit for declaration and damages is the same on which the present suit is filed and hence, a case is made out for grant of leave. 5 The learned counsel for the respondent invited my attention to the averments made in the plaint. He submitted that even assuming that the petitioner wants to file a separate suit on the basis of same cause of action, going by the averments made in the plaint, the said relief is barred by limitation as of today. He 3 submitted that apart from the fact that relief of ownership could have been claimed in the present suit, as of today, no case is made out for grant of leave in as much as the suit which is proposed to be filed by the petitioner is barred by limitation. 6 I have given careful consideration to the submissions. The Sub-rule 3 of rule 2 of Order II of the said Code provides that 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. The case made out in the plaint is that by virtue of alleged agreement of assignment, the petitioner purchased the suit shop and paid the entire consideration to the respondent. It is alleged in paragraph 4 of the plaint that the petitioner is in exclusive possession of the suit shop as the owner thereof. In paragraph 6 of the plaint, there are averments made regarding alleged illegal demand made by the respondent. The alleged illegal demand was for payment of additional consideration of Rs.20,00,000/-. Thus, the averments made in the plaint are that the petitioner has become the owner and that the possession of the petitioner is sought to be disturbed. Another allegation is that the respondent is demanding the additional consideration. Thus, the averments made in the plaint show that the respondent is disputing the right of exclusive ownership claimed by the petitioner. The averments made in the plaint show that the cause of action became available to the petitioner to file a suit for declaration and/or damages. A fresh suit which is proposed to be filed by the petitioner is based on the same alleged cause of action which is subject matter of the suit. The trial 4 Court has proceeded on the erroneous footing that the suit seeking a relief of declaration of ownership will be based on a separate cause of action. To that extent, the trial Court is completely wrong. As the reliefs which the petitioner is proposing to claim by filing a separate suit ought to have been included in the present suit, if the petitioner wants to file a separate suit for the said reliefs, a leave under sub rule 3 of rule 2 of Order II of the said Code will be necessary. There was no reason to deny the leave to file a separate suit. Even if a separate suit is filed, all objections of the respondent as regards maintainability of the suit and even as regards the bar of limitation will always remain open and the such defects cannot be cured by grant of leave leave by the Court. 7 Subject to what is observed above, petition must succeed and the application made by the petitioner will have to be allowed. 8 Hence, I pass the following order : i) Impugned order dated 14 th August 2008 is quashed and set aside and the application at Exh.1A is hereby allowed. ii)It is obvious that all contentions of the respondent in the suit which may be filed by the petitioner including the contention regarding bar of limitation are expressly kept open. iii)Notwithstanding the grant of leave by this Court under this order, it will be open for the respondent to agitate the contentions in the written statement to suit when the same is filed. iv)Writ Petition is allowed in above terms with no order as to costs. 5 JUDGE