1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8453 OF 2009 Rajesh Dattatraya Kadolkar Petitioner versus Smt.Anuradha Ravindra Garud and others Respondents Tejesh Dande for petitioner. Mr.Kapre for respondents. CORAM : A.S.OKA, J. DATE : 11th March 2010 PC : 1. Heard learned counsel for the petitioner. The petitioner is the third defendant in a suit filed by the first respondent. The suit has been filed by the first respondent for declaration that the will dated 25th March 2005 is bogus and fabricated. A perpetual injunction has been prayed for restraining the defendants in the suit from acting upon the said will. The will pleaded was of one Dattatraya. 2. An application was made by the first respondent for grant of leave under Sub-Rule 3 of Rule 2 of Order II of the Code of Civil Procedure, 1908. A prayer was made for grant of permission to file a suit for partition. In the application it was contended that the first respondent was not possessing all the documents relating to the property held by the deceased and, therefore, the first respondent was unable to make a 2 prayer regarding partition. By the impugned order, leave has been granted by the Court. Learned counsel for the petitioner relied upon the Full Bench decision of this Court in case of Shankarlal Laxminarayan Rathi and others Vs. Gangabisen Maniklal Sikchi and another (AIR-1972- Bom-326). He also placed reliance on a decision in the case of Prakash Balaram Nichani Vs. Mohandas Parshuram Ahuja (2009[2]-Mh.L.J.-475). Lastly, he relied upon a decision of this Court in case of smithkline Beecham Consumer Healthcare Gmbhy & others Vs. Hindustan Lever Ltd. and another (2002 [Supp[.-BCR-674). He submitted that though the power to grant leave is discretionary, the said power has to be exercised with due care and leave cannot be granted only to enable the plaintiff to avoid payment of court fees. He submitted that the leave cannot be granted unless a case is made out for grant thereof. He submitted that the leave has been mechanically granted by the impugned order. 3. In the application made by the first respondent it is stated that the petitioner is unable to obtain all the documents relating to the property held by the deceased which is referred to in the will. It is stated that as the parties were closely related, the first respondent was of the view that if partition is sought for at this stage, it will lead to break-down of the relationship between the parties. 4. The main ground in the application is that the petitioner could not collect all the relevant documents relating to the properties in respect of which partition has to be claimed. After considering the averments made 3 in the application, a discretionary order of grant of leave has been passed by the Trial Court. Looking to the reasons assigned in the application, it is not possible to interfere with the discretionary order passed by the Court in exercise of powers of superintendence of this Court. The writ petition is rejected. (A.S.OKA, J.)