-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 2153 OF 2008 with CIVIL APPLICATION NOS. 5173 OF 2008 & 5896 OF 2008 M/s. Vimal Builders, ) A duly registered Partnership firm having registered ) office at Muchhala Polytechnic, 5th floor, Anand Nagar, ) Sai Vihar Complex, Ghodbunder Road, Kasar Vadavli, ) Thane (West)-400 601, through its Partner ) Kishor Nandlal Shah ) Aged : Adult, Occ. Business )..Appellant Versus 1. Ketan Kantilal Thakkar, age 47 years, ) Occupation Business ) 2. Kantilal Vallabhdas Thakkar, ) age 73 years, occupation business, ) Both having address at 204, Ashoka Shopping Centre, ) 2nd floor, L.T. Road, Mumbai-400 001 ) 3. Dhondu Rama Bhoir ) 4. Ms. Gangubhai Rama Bhoir ) 5. Ms. Dharmibai Dhondu Bhoir ) 6. Vijay Dhondu Bhoir ) 7. Santosh Dhondu Bhoir ) 8. Nandu Dhondu Bhoir ) 9. Ms. Kavita Dhondu Bhoir ) 10. Ms. Savita Dhondu Bhoir ) 11. Ms. Gangubai Kundlik Gaikar ) 12. Gurunath Kundlik Gaikar ) 13. JairamDahi Gaikar ) 14. Gulam Sitaram Gaikar ) 15. Dattu Maruti Gaikar ) 16. Hasha Pandu Tamboli ) 17. Ms.Fasabai Mahadu Tamboli ) 18. Ms. Leela Mahadu Tamboli ) 19. Ms. Bani Mahadu Tamboli ) 20. Ms.Drupada Mahadu Tamboli ) 21. Bandu Ramaji Tamboli ) -2- 22. Ms. Susha Ramaji Tamboli ) 23. Ms. Usha Ramaji Tamboli ) 24. Kamlabai Budha Mane ) 25. Pandit Nago Mane ) 26. Dilip Nago Mane ) 27. Ms. Saguna Nago Mane ) 28. Pappu Ankush Tamboli ) 29. Vinayak Ankush Tamboli ) 30. Ms. Manisha Ankush Tamboli ) 31. Ms. Nirmala Ankush Tamboli ) 32. Sunil Ramchandra Tamboli ) 33. Ms. Sunita Ramchandra Tamboli ) 34. Ms. Taibai Ramchandra Tamboli ) 35. Ms.Shewantabai Kacharu Gaikar ) 36. Ramdas Kachru Gaikar ) 37. Shivdas Kachru Gaikar ) 38. Shanidas Kachru Gaikar ) 39. Hanuman Kachru Gaikar ) 40. Indradas Kachru Gaikar ) 41. Dashrath Janu Gaikar ) 42. Lahu Janu Gaikar ) 43. Ankush Janu Gaikar ) 44. Sadashiv Janu Gaikar ) 45. Ms. Gangubai Motiram Bhoir ) 46. Ms.Vithabai Bhagwan Bhoir ) 47. Ms. Draupadibai Jayawant Patil ) 48. Eknath Jairam Gaikar ) 49. Harishchandra Jairam Gaikar ) 50. Balaram Jairam Gaikar ) 51. Ms.Sangubai Gopal Patil ) 52. Ms. Sukrabai Gajanan Chaudhari ) 53. Ms. Kalubai Krishna Bhoir ) 54. Ms.Fasubai Pandurang Bhoir ) 55. Ms. Meenabai Madan Pawashe ) 56. Ms. Taibai Jairam Gaikar ) 57. Ms. Bheemabai Janu Sarnobat ) 58. Ms. Manubai Natha Shelar ) 59. Ms. Padmabai Shivaji More ) 60. Ms. Kavitabai Kisan Pise ) 61. Jamdev Janu Sarnobat ) 62. Ram Janu Sarnobat ) 63. Shyam Janu Sarnobat ) 64. Ms. Taibai Kundlik Dabhe ) 65. Ms. Kalubai Bandu Thakre ) -3- 66. Ms. Pada Shamji Bhoir ) 67. Ms. Gunjabai Kundlik Patil ) 68. Eknath Dinkar Gaikar ) 69. Baban Dinkar Gaikar ) 70. Tulsiram Dinkar Gaikar ) 71. Ms.Girjabai Pandurang Bhoir ) 72. Ms. Meerabai Pundlik Lagde ) 73. Ms.Anubai Jairam Jadhav ) 74. Ms.Gulab Karun Mhatre ) 75. Ms. Ranjana Ravindra Patil ) 76. Ms. Changubai Dinkar Gaikar ) 77. Shivdas Kachru Gaikar ) 78. Laxman Shankar Patil ) 79. Ganpat Baburao Patil ) 80. Balaram Bama Gaikar ) 81. Jaykant Baliram Patil ) 82. Pandit Tukaram Gaikar ) 83. Shreeram Vithu Patil ) 84. Yashodabai Raghunath Patil ) 85. Mohan Vithu Patil ) 86. Lahu Vithu patil ) 87. Ms, Gaurubai Vithu Patil ) 88. Ms. Gunabai Vithu Patil ) 89. Shashikant Vithu Patil ) 90. Suryakant Vithu Patil ) 91. Ms. Tarabai Vithu Patil ) 92. Ms.Savitri Janu Patil ) 93. Vishanu Balu Kene ) 94. Ramji Balu Kene ) 95. Gulam Balu Kene ) 96. Ms. Manibai Gopinath Kene ) 97. Ms. Sundarabai Balu Kene ) 98. Kalubai Raghunath Kene ) 99. Bandu Raghunath Kene ) 100. Santosh Raghunath Kene ) 101. Ms. Somibai Raghunath Kene ) 102. Ms. Barkibai Raghunath Kene ) 103. Tukaram Budhya Patil ) 104. Namdev Kusha Gaikar ) 105. Baliram Ragho Patil ) 106. Abhimanyu Dharma Patil ) 107. Golvind Dharma Patil ) 108. Chandrakant Dharma Patil ) 109. Ms. Laxmi Eknath Joshi ) -4- 110. Ms.Draupadibai Dharma Patil ) 111. Arjun Janu Gaikar ) 112. Ms. Girjabai Ganpat Patil ) 113. Shankar Ganpat Patil ) 114. Krishna Shankar Patil ) 115. Wasudev Shankar Patil ) 116. Ms.Tulsabai Shankar Patil ) 117. Ankush Ganpat Patil ) 118. Ms.Sakubai Raghunath Patil ) 119. Sukhdeo Rajaram Patil ) 120. Ms.Draupadabai Rajaram Patil ) 121. Ms. Latabai Ramesh Chaudhary ) 122. Ms. Kalpana Shivdas Patil ) 123. Tulsiram Dattu Patil ) 124. Aatmaram Dattu Patil ) 125. Bhaskar Dattu Patil ) 126. Sharad Dattu Patil ) 127. Ms. Mahalubai Dattu Patil ) 128. Yesubai Sadashi Chaudhary ) 129. Manjulabai Laxman Shinde ) 130. Shardabai Dattu Patil ) 131. Ms.Radhabai Dattu Patil ) 132. Ms. Laxmibai Dattu Patil ) 133. Ms. Muktabai Dattu Patil ) 134. Kusha Narayan Gaikar ) 135. Tukaram Narayan Gaikar ) 136. Baliram Narayan Gaikar ) 137. Gangaram Narayan Gaikar ) 138. Ms.Shakuntala Kusha Gaikar ) 139. Ms.Sitabai Motiram Bhane ) 140. Ms. Anusaya Pandurang Bhagat ) 141. Ms. Sewantabai Namdev Bhoir ) 142. Parshuram Nandev Bhoir ) 143. Dashrath Namdev Bhoir ) 144. Tulsiram Namdev Bhoir ) 145. Dinakar Namdev Bhoir ) 146. Vilas Namdev Bhoir ) 147. Ms.Chandabai Madhukar Gaikwad ) 148. Ms. Laxmibai Subhash Madhavi ) 149. Ms.Shantabai Baban Patil ) 150. Ms. Vasanti Sharad Patil ) 151. Surjit Dashrath Bhoir ) 152. Nikhil Parshuram Bhoir ) 153. Baliram Pandu Patil ) -5- 154. Ms.Anusaya Sakaram Patil ) 155. Damu Pandu Patil ) 156. Krishna Pandu Patil ) 157. Nagubai Pandu Patil ) 158. Shyam Gajanan Patil ) 159. Ram Gajanan Patil ) 160. Ms. Lata Ananta Gaikar ) 161. Ms.Shakuntala Kusha Patil ) 162. Ms. Anandibai Gajanan Patil ) 163. Ms. Bhimabai Gajanan Patil ) 164. Ms.Rajubai Kusha Mane ) 165. Ms. Parvatibai Anant Patil ) 166. Ms. Gangubai Gavan ) 167. Ms. Tarabai Motiram Vage ) 168. Ms. Indubai Arjun Gaikar ) 169. Kashinath Sitaram Gaikar ) 170. Gulam Sitaram Gaikar ) 171. Ramdas Sitaram Gaikar ) 172. Janardan Sitaram Gaikar ) 173. Sadashiv Sitaram Gaikar ) 174. Mukund Sitaram Gaikar ) 175. Ms. Leelabai Ratan Gaikar ) 176. Ashok Balaram Mhatre ) 177. M. Muktabai Balaram Mhatre ) Alias Muktabai Navnath Thakur ) 178. Ms.Vandanabai Balaram Mhatre ) 179. Madan Baliram Gaikar ) 180. Pandit Motiram Mhatre ) 181. Sanjay Mtiram Mhatre ) 182. Sunil Motiram Mhatre ) 183. Ms.Chandrabai Dinkar Bhopi ) 184. Ms. Indra Premnath Thakur ) 185. Ms. Radhabai Vishnu Bhane ) 186. Ms. Sita Motiram Mhatre ) 187. Ms.Vithabai Motiram Mhatre ) 188. Nitin Vasant Mhatre ) 189. Ms. Neeta Vasant Mhatre ) 190. Ms. Janabai Vasant Mhatre ) 191. Bandu Likrya Tamboli ) 192. Dashrath Janu Gaikar ) 193. Lahu Janu Gaikar ) 194. Ankush Janu Gaikar ) 195. Sadashiv Janu Gaikar ) 196. Ms.Gangubai Motiram Bhoir ) -6- 197. Ms. Leelabai Bhagwan Bhoir ) 198. Ms.Draupadabai Jaywant Patil ) 199. Vishanu Balu Kene ) 200. Ramji Balu Kene ) 201. Gulam Balu Kene ) 202. Kalubai Raghunath Kene ) 203. Bandu Raghunath Kene ) 204. Santosh Raghunath Kene ) 205. Ms. Sonibai Raghunath Kene ) 206. Ms. Barkibai Raghunath Kene ) 207. Lalchand Padu Kene ) 208. Ms. Kamalabai Ranchod Patil ) 209. Ms. Neerabai Vishanu Patil ) 210. Ms. Sampadabai Madhukar Mhatre ) 211. Ms. Aanandibai Padu Kene ) 212. Subhash Padi Kene ) 213. Ms.Rekha Padi Kene ) 214. Vishnu Rajaram Patil ) 215. Nandu Ashok Patil ) 216. Sanjay Ashok Patil ) 217. Jitendra Ashok Patil ) 218. Ms. Pournima Ashok Patil ) 219. Ms. Fashibai Ashok Patil ) All adult, Occ. Agriculturists ) (The summons of Defendant Nos. 3 to 219 may be ) served on Defendant No. 1 and 2 as their Power of ) Attorney Holders) ) 220. M/s. Regency Nirman Pvt. Ltd. ) a Company duly incorporated under the ) Companies Act, 1956, having office at : ) 111/112, Anil Complex, ) Near Regency Hall, New Link Road, ) Ulhasnagar-421 003 ) through its Directors, ) Shri Mahesh Satyanarayan Khairari ) Aged, Adult. Occ. Business )...Respondents WITH WRIT PETITION NO. 641 OF 2009 -7- M/s. Vimal Builders, ) A duly registered Partnership firm having registered ) office at Everest Square, 6th Floor, ) Junction of Shraddhanand Road and ) Nehru Road, Vile Parle (E), Mumbai-400 057 ) and now having office at Muchhalla Polytechnic, ) Anand Nagar, Sai Vihar Complex, Ghodbunder Road, ) Kasar Vadavli, Thane (West)-400 601. )..Petitioner versus 1. Ketan Kantilal Thakkar ) aged 45 years, Occ. Business ) 2. Kantilal Vallabhdas Thakkar, ) Age 71 years, Occ. Business, both having address ) at 204, Ashoka Shopping Centre, 2nd floor, L.T.Road, ) Mumbai-400 001 ) 3. Regency Nirman Pvt. Ltd. ) a Company duly incorporated under the Companies ) Act, 1956, having its office at 111/112, Anil Complex, ) Near Regency Hall, New Link Road, ) Ulhasnagar-421 003. )...Respondents Mr. D.D. Madon, Senior Advocate, with Ms. Harsha Rele, Mrs. Tapasya Mhatre and Mr. Iqbal Ashan, instructed by Smt. Shanta Rao for the Appellant in First Appeal and for the petitioner in Writ Petition. None for respondent Nos.1 to 219 in First Appeal. Mr. S.U. Kamdar, Senior Advocate, with Mr. Devrat Singh and Mr. Brijesh Upadhyay, instructed by M/s. Purnand & Company, for respondent No. 220 in First Appeal and for respondent No.3 in writ petition. None for respondent Nos.1 & 2 in writ petition. CORAM: P.B. MAJMUDAR & R.V. MORE, JJ. Judgment reserved on : 29 th August, 2009 Judgment pronounced on: 16 th September,2009 -8- JUDGMENT: (Per P.B. Majmudar, J.) Since it is agreed between the learned counsel appearing for the parties, both these matters are disposed of finally at the admission stage itself. In view thereof, the Appeal is admitted. Rule is issued in Writ Petition No. 641 of 2009. Learned counsel for respondent No.220 in First Appeal and for respondent No.3 in writ petition waives service. 2. Since the issue involved in the First Appeal and in the writ petition being common, with the consent of the learned counsel appearing for the parties, both these matters are taken up for hearing together and are being disposed of by this common judgment. 3. Facts in First Appeal may be noticed. The First Appeal is directed against the judgment and order dated 3rd October, 2008, passed by the 2nd Joint Civil Judge, Senior Division, Kalyan, by which the learned trial Judge has held that the suit of the plaintiff i.e. Special Civil Suit No. 292 of 2008 is not maintainable as per Order II Rule 2 (3) of the Civil Procedure Code, 1980 (hereinafter “the Code”) and accordingly the plaint is rejected under Order 7 Rule 11 of the Code which order is impugned at the instance of the original plaintiff. The aforesaid suit was filed by the appellant for specific performance of an agreement dated 16th September, 2006, declaration and injunction etc. -9- 4. It is the case of the plaintiff that defendant Nos. 1 and 2 executed an agreement for sale in favour of the plaintiff on 16th September, 2005, in connection with various pieces of lands situate at Villages Davadi and Golivli of Tal. Kalyan, District Thane, totally admeasuring 1,39,980 sq.yards plus about 5,00,000 to 7,00,000c sq.yds. for a total agreed consideration of Rs. 13,73,20,380/-, out of which an amount of Rs. 2,19,96,316/- was to be paid to the original land owners i.e. defendant Nos. 3 to 219 herein and Rs. 11,53,24,064/- was to be paid to defendant Nos. 1 and 2. It is the case of the plaintiff that the plaintiff paid a sum of Rs. 50 lacs towards earnest amount. Defendant Nos. 1 and 2 also simultaneously executed a general power of attorney in favour of the partners of the plaintiff firm on 16th September, 2005. 4. It is the case of the plaintiff that he paid from time to time an amount of Rs. 60 lacs to defendant Nos. 1 and 2 by various cheques. It was agreed between the plaintiff and defendant Nos. 1 and 2 to execute supplementary agreement and such agreement should be signed before encashing the last cheque dated 17th March, 2006 which was given by the plaintiff to defendant Nos. 1 and 2. It is the case of the plaintiff that even though a sum of Rs. 1.10 crores have been paid by the plaintiff, neither the accounts were given by defendant Nos. 1 and 2 nor they came forward to sign the supplementary agreement which was already prepared and engrossed on -10- 21st March, 2006. It is further the case of the plaintiff that defendant No.1 sent a letter to the plaintiff calling upon the plaintiff to pay the additional amount of Rs. 10 crores to fulfill alleged obligation of the said project. The plaintiff prepared a reply on 31st August, 2006 to the said letter dated 18th August, 2006 along with a cheque of further amount of Rs. 10 lacs to Defendant Nos. 1 and 2 subject to the terms and conditions contained therein. According to the plaintiff, defendant Nos. 1 and 2 did not accept and confirm the said letter dated 31st August, 2006. Suddenly, defendant Nos. 1 and 2 sent a notice to the plaintiff through their Advocate making various incorrect allegations. Thereafter correspondence ensued between the parties. The plaintiff gave a public notice on 19th December, 2006 through their Advocates and ultimately filed the aforesaid suit. 5. Prior to filing of the aforesaid Special Civil Suit No. 292 of 2008, the plaintiff filed Regular Civil Suit No. 450 of 2006 before the Civil Judge, Junior Division, Kalyan, for permanent injunction restraining defendant Nos. 1 and 2 from creating third party interest in respect of the suit lands in any manner whatsoever, to restrain defendant Nos. 1 and 2 from entering into any transaction with the third parties and further to restrain them from transferring the land in question by giving any development rights. The plaintiff also prayed for an injunction that the defendants be restrained from parting with the possession of the suit land and/or any part thereof to any third party in any -11- manner whatsoever. The plaintiff also filed a separate application below Exh. 7 in the said Regular Civil Suit No. 450 of 2006 for seeking leave under Order II Rule 2 of the Code for filing substantive suit for specific performance. It is, however, required to be noted that even though the said application Exhibit-7 was pending, without obtaining prior leave under Order II Rule 2 of the Code, the plaintiff filed subsequent suit being Special Civil Suit No. 292 of 2008. The cause of action for filing the subsequent suit is that the defendant Nos. 1 and 2 executed document styled as agreement for sale in favour of respondent No. 220 on 30th December, 2006 and that this fact came to the notice of the plaintiff when defendant Nos. 1 and 2 filed a reply in Regular Civil Suit No. 450 of 2006 and stated that they had already created right in favour of respondent No. 220. The plaintiff thereafter submitted an application Exh. 21 in the said Regular Civil Suit No. 450 of 2006 for amendment of the plaint. The said application was allowed and respondent No. 220 was allowed to be added as defendant No. 3 in the said Regular Civil Suit No. 450 of 2006. It seems that in the meanwhile the injunction application Exh. 5 was dismissed by the trial Court on the ground that defendant Nos. 1 and 2 have already created third party interest in favour of respondent No. 220. Being aggrieved by the said order, the plaintiff filed a Miscellaneous Civil Application NO. 89 of 2007 in the Court of the Additional District Judge, Kalyan, and the Court is informed that the same is pending before the appellate Court. -12- 6. In the aforesaid Special Civil Suit No. 292 of 2008, respondent No. 220 filed an application below Exh. 32 contending, inter alia, that the plaintiff failed to obtain leave of the Court to omit the reliefs while filing Regular Civil Suit No. 450 of 2006 and on that ground the suit may be dismissed. The learned trial Judge before whom the said Special Civil Suit was pending heard the said application Exh. 32 before hearing the temporary injunction application. The learned Judge after hearing both the sides came to the conclusion that the reliefs claimed in the Special Civil Suit regarding specific performance was available to the plaintiff at the time of filing of Regular Civil Suit No. 450 of 2006( which is a prior suit). The learned trial Judge accordingly came to the conclusion that since the present special civil suit is filed without obtaining leave and hence in view of the mandate of Order II Rule 2 (3), the plaint is liable to be rejected under clause (d) of Rule 11, Order VII of the Code. The learned trial Judge accordingly held that the suit was not maintainable and rejected the suit. Against the aforesaid order of dismissing the suit, the plaintiff has preferred the aforesaid appeal. 7. So far as Writ Petition No. 641 of 2009 is concerned, the same is filed against the judgment and order dated 30th December, 2008 passed by the 2nd Joint Civil Judge, Junior Division, Kalyan, by which the learned trial Judge has rejected the Application Exh. 7 in Regular Civil Suit No. 450 of 2006 which application was filed for granting leave to file separate suit. The learned trial -13- Judge rejected the said application on the ground that the second suit is filed without obtaining the leave of the Court and such leave should have been obtained before institution of the second suit. The learned trial Judge further held that the application is to be decided in consonance with the order passed by the Civil Judge, Senior Division, Kalyan, in Special Civil Suit No. 292 of 2008 because if the application is allowed and the leave is granted to the plaintiff, it would amount to counter blast the order passed by the Civil Judge, Senior Division, Kalyan, and it was held that the application has technically become infructuous. The learned trial Judge also found that the plaintiff has not given cogent reasons for granting leave. The plaintiff without any justifiable reasons chose to omit some reliefs. The learned Judge also found that the application was not filed in a bona fide manner as after filing the application, the plaintiff did not press the application for hearing. The learned trial Judge by the impugned order dated 30th December, 2008 rejected the said application against which the aforesaid writ petition has been filed by the original plaintiff. 8. Mr. D.D. Madon, learned Senior Advocate appearing for the appellant of the First Appeal and Petitioner of the Writ Petition, vehemently submitted that the learned trial Judge has committed an error in dismissing the Special Civil Suit under Order VII Rule 11 of the Code as, according to the learned counsel, without framing the issues and recording the evidence, the Court should not have passed the impugned order. The learned counsel further -14- submitted that it is true that the regular civil suit was filed earlier in point of time wherein the prayer for injunction is made but at that time since the plaintiff was not aware about the subsequent transaction carried out by defendant Nos. 1 and 2, it was not possible for the plaintiff to challenge the said transaction which has subsequently taken place after the filing of the suit. It is submitted that the plaintiff came to know about this fact only when a reply was filed by the concerned defendants and till then the plaintiff was not aware about any such transaction. The learned Counsel also submitted that the first suit is only a suit for injunction and the second suit is a suit for specific performance and even the part of cause of action can be said to be different in both the suits and, therefore, the bar of Order II Rule 2 (3) may not be applicable. Mr. Madon further submitted that there are additional parties in the special civil suit and subsequent suit is also not between the same parties and, therefore, the said bar is also not applicable. According to Mr. Madon, since the nature of both suits being different, bar of Order II Rule 2 (3) of the Code is not applicable. So far as the writ petition is concerned, Mr. Madon submitted that earlier in the First Appeal, a Division bench of this Court (S.B. Mhase & A.A. Sayed, JJ.) on 10th December, 2008 directed the learned trial Judge to dispose of Exh. 7 application in Regular Civil Suit No. 450 of 2006, without being influenced by the order passed by the learned Civil Judge, Senior Division, Kalyan in Special Civil Suit No. 292 of 2008. Yet, the learned Judge has considered the order of the learned Civil Judge, Senior Division and passed the order contrary to the -15- direction given by the Division Bench of this Court. 9. Mr. Madon further submitted that the plaintiff had already submitted an Application at Exh. 7 in Regular Civil Suit No. 450 of 2006 and if the court has not taken up the said application for hearing, no fault can be found with the plaintiff in this behalf. It is submitted that even if subsequent suit is filed without the leave, the learned trial Judge has gravely erred in holding that the application at Exh. 7 has become infructuous, as after obtaining leave the plaintiff can file even another suit i.e. a third suit in the present case. Mr. Madon submitted that this is a case in which the plaintiff is non-suited for specific performance even before it is tried. 10. Mr. Kamdar, learned Senior Advocate, appearing for respondent No. 220, on the other hand, submitted that the suit was rightly dismissed under Order VII Rule 11 of the Code as the subsequent suit has been filed for specific performance without obtaining leave under Order II Rule 2 (3) of the Code. Mr. Kamdar submitted that in a suit for injunction, the plaintiff could have also asked for a prayer for specific performance of the agreement as the suit for injunction was also based in view of the alleged agreement to sell entered into between the parties. Mr. Kamdar submitted that even though the first suit is a suit for injunction, the plaintiff having failed to ask for any relief of specific -16- performance now cannot file a subsequent suit for the said prayer, without first obtaining the leave from the Court before whom the first suit is pending. It is submitted by Mr. Kamdar that such leave is required to be obtained before filing of the second suit and when the second suit is filed the learned Civil Judge was justified in dismissing the suit on the ground that it is not maintainable. Mr. Kamdar submitted that once leave is not obtained before filing of the second suit, the second suit was rightly dismissed by the learned trial Judge and in view of the same, the learned Civil Judge, Junior Division, Kalyan, has rightly dismissed Exh. 7 application as there was no question of granting the leave when the subsequent suit is already dismissed by the Court. Mr. Kamdar submitted that in view of the dismissal of the second suit for want of leave as provided by Order II Rule 2 (3) of the Code, the trial Court was justified in rejecting application at Exh. 7. The learned counsel further submitted that now the third suit cannot be filed by the plaintiff by obtaining the leave. 11. Both the learned counsel have taken us through the record and proceedings of the case a well as various case laws on the subject matter. 12. The principal question which is required