(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 6673 OF 2009 1. Guman s/o. Trimbak Patil, .. Petitioners 2. Nilkanth s/o. Trimbak Patil, (Original 3. Gangaram s/o. Trimbak Patil. plaintiffs) versus Reshmabai w/o. Atmaram Patil. .. Respondent (Original defendant) .......................... Mr. S.P. Shah, Advocate, for the petitioners. .......................... CORAM : B.R. GAVAI, J. DATE : 23RD NOVEMBER 2009. COURT'S ORDER : 1. By way of present petition, the petitioner challenges the order dated 4th September 2009, passed by the learned Joint Civil Judge (Junior Division), Amalner, below Exhibit 16 in Regular Civil Suit No. (2) 40/2009, thereby rejecting the application filed by the present petitioner, under Order II Rule 2(3) of the Code of Civil Procedure, 1908. 2. The husband of the present respondent had filed Special Civil Suit No. 40/2005 for partition and separate possession against the present petitioners. The said suit has been decreed and an appeal challenging the judgment and decree is pending before the learned District Judge. The present respondent has filed suit being Regular Civil Suit No. 40/2009, contending therein that she is in peaceful possession of field Gat No. 517 and that the defendants are forcibly trying to obstruct her possession. In the said suit, an application came to be filed by the present petitioners under Order II Rule 2(3) of the Code of Civil Procedure, contending therein that the relief which is now sought to be claimed in the present suit, was available to the defendant in an earlier suit. It is submitted that since in the earlier suit, the relief of injunction is not claimed, the same will have to be treated as abandoned and fresh suit for the same relief would not be permissible. 3. The learned Judge of the trial court has found that the earlier suit filed by the husband of the respondent was for the relief of partition, possession and declaration. However, it has been found that the present suit is on the basis of fresh cause of action regarding the alleged obstruction by the present petitioners on 27th June 2009 with the peaceful possession of the plaintiff. 4. It is to be noted that in the judgment and decree in the earlier suit itself, i.e. Special Civil Suit No. 40/2005, in paragraph 17 of the (3) judgment, the learned Judge of the trial court has held that the plaintiff therein (husband of the present plaintiff) was in possession of Gat No. 517. In the present suit, it is the specific case of the respondent, that though the respondent and her sons are in peaceful possession of the suit premises, their possession was sought to be obstructed by the present petitioners on 27th June 2009. In that view of the matter, it can clearly be seen that the respondent had a fresh cause of action to file a fresh suit on the basis of alleged threat of obstruction. 5. In that view of the matter, no perversity could be found with the finding of the learned Judge of the trial court, that the provisions of Order II Rule 2(3) of the Code of Civil Procedure, 1908, would not be applicable to the facts of the present case. 6. No case is made out for interference in exercise of extraordinary jurisdiction of this court under Article 227 of the Constitution of India. 7. Hence, the petition is dismissed. ( B.R. GAVAI ) JUDGE ......................... bgp/wp6673