1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.549 OF 2009 Bhagyashri S.Dugad. ..Petitioner. V/s. Sonyabapu Sitaram Bandal & Ors. ..Respondents. Mr.Shriram Kulkarni for Petitioner. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : JANUARY 29, 2009. DATE : JANUARY 29, 2009. DATE : JANUARY 29, 2009. P.C. : P.C. : P.C. : 1. Heard Counsel for the Petitioner. 2. The argument before this Court is that the Court below has not applied the correct legal principle in the fact situation of the present case. The argument clearly overlooks the finding recorded in paragraph-7 of the impugned Judgment. On analysing paragraph-15 of the plaint, the trial Court proceeded to record that the Plaintiff has stated in the said paragraph that he was not claiming any relief against the Defendant No.2 and has added him only as a formal party. Once having said that in no uncertain terms, the question is whether the Plaintiff can resurrect any relief against the Defendant No.2 at a later stage, which he was 2 otherwise entitled to pray when the suit was originally instituted. The averment in the plaint as has been rightly pointed out by the Court below amounts to relinquishment or waiver of reliefs against the Defendant No.2, which was then available to the Plaintiff. Once it is a case of relinquishment, question of permitting the Plaintiff to lateron pray for any relief against the Defendant No.2 does not arise. The decision of the Division Bench of our High Court in the case of Canning Mitra Canning Mitra Canning Mitra Phoenix Ltd. V/s. M/s.Popular Constructions & Anr. Phoenix Ltd. V/s. M/s.Popular Constructions & Anr. Phoenix Ltd. V/s. M/s.Popular Constructions & Anr. which is pressed into service, in fact, can be used to answer the issue against the Petitioner. In paragraph-7 of this Judgment, the Court has considered the efficacy of Rule 2(2) and Rule 2(3) of Order II of C.P.C and has observed that omission contemplated by said provisions in seeking relief must be a case omission. It is only if it were to be case of accidental omission to pray the relief, that can be a ground to take benefit of Order II Rule 2(3). But in a case where it is relinquishment as is evident from in paragraph-15 of the plaint, the provision of Rule 2(3) of Order II would be unavailable. 3. Hence this Petition fails and is dismissed. 3 (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)