1 wp1911 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.1911 OF 2011 M/s.Sukumar Machines and Construction Private Ltd. ...Petitioner vs. Doongursee Park Co-operative Housing Society Ltd. ...Respondent Mr.R.V.Govilkar for the Petitioner Mr.Bomi Patel a/w Ms Prachi Mhatre i/b M/s.Bodhanwala & Co. for the respondent CORAM : A.S.OKA,J. DATE : JULY 13, 2011 P.C.: 1 As the regular Court (Coram: D.G.Karnik,J.) has declined to take up this Petition, as per the administrative order of the Hon ble the Chief Justice, this petition is placed before this Court.Rule. The Advocate for respondent waives service. Considering the narrow controversy, the petition is immediately taken up for final disposal. 2 The petitioner is the plaintiff and the respondent is the defendant. The petitioner filed a suit against the respondent for declaration that the petitioner is entitled to complete the development work of the suit property. The second prayer in the suit is that the respondent be directed to act as per resolutions passed in the meeting of the Sub-Committee dated 24 th January 1997 including to execute Memorandum of Understanding, if required. There is a prayer for perpetual injunction apart from other two prayers. During the pendency of the suit for declaration, an application was made by the petitioner at Exh.49 praying for grant of leave to file a 2 wp1911 separate suit for specific performance of the alleged agreement arrived at in the meeting dated 24 th January 1997. A prayer was made for grant of leave in accordance with sub rule 3 of rule 2 of Order II of Code the of Civil Procedure,1908. By the impugned order, said application has been rejected. 3 The learned counsel for the petitioner submitted that while deciding the application for grant of leave, the Court could not have gone into the merits of the case. He submitted that there is a specific averment in the plaint that the petitioner was reserving his right to file a separate suit for specific performance of the agreement. He submitted that the approach of the learned Trial Judge is erroneous. The learned counsel for the respondent opposed the petition by submitting that the so called agreement dated 24 th January 1997 is not in existence. He submitted that the learned Trial Judge was right in passing discretionary order declining to grant leave. 4 I have given careful consideration to the submissions. Perusal of the plaint and in particular paragraph 18 thereof shows that the petitioner has specifically stated that he is reserving his right to file a suit for specific performance of the agreement for sale. In view of the settled law,an application for grant of leave during the pendency of the suit was maintainable. It was not necessary to apply for leave on the date of institution of the suit. Perusal of the impugned order shows that the learned Judge has observed that in the plaint there is nothing to show that the petitioner has reserved his right to sue for specific performance of the agreement. As pointed out earlier, there is a specific averment in the plaint in that 3 wp1911 behalf. In any event, the said reason is also erroneous in as much as the application for seeking leave can be made at any stage of the suit. 5 Whether the suit agreement exists or not is an issue which will be decided in the pending suit or in the proposed suit to be filed by the petitioner. Merely because the leave is granted, it will not amount to proof of existence of the alleged agreement. Therefore, entire approach of the learned Trial Judge is erroneous and this was a case where leave as prayed for ought to have been granted. 6 Hence, I pass the following order : i) Impugned Judgment and Order is quashed and set aside and the application at Exh.49 is allowed in terms of prayer clause (a) thereof. ii)It is made clear that this Court has not made any adjudication on merits of the controversy including the controversy whether there exists any such agreement. All these questions are kept open which will be decided by the Trial Court. iii)Rule is made absolute in above terms with no order as to costs. JUDGE