Case Note & Summary
The case arises from a matrimonial dispute where the respondent-wife filed HMP No.332 of 2010 seeking divorce and a claim over immovable properties. She filed an application (Exhibit 29) under Order 2 Rule 2 CPC seeking permission to delete the prayer for immovable property relief and to file separate proceedings. The trial court passed an order on 29/8/2011 to 'put for order' but did not decide it. Subsequently, the wife filed another application (Exhibit 35) under Order 6 Rule 17 CPC for amendment of the plaint to delete the same relief. The trial court allowed Exhibit 35, deleting paragraph 24(C) relating to immovable properties. The husband-petitioner challenged this order. The High Court observed that the relinquishment or giving up of a claim is governed by Order 2 Rule 2 and Order 2 Rule 3 CPC, and the trial court erred by treating Exhibit 35 solely as an amendment application under Order 6 Rule 17 without considering the pending Exhibit 29. The High Court held that both applications should have been decided together, as the consequences of relinquishment affect the parties. Consequently, the impugned order was quashed and set aside, and the trial court was directed to decide Exhibit 29 and Exhibit 35 together.
Headnote
A) Civil Procedure - Amendment of Plaint - Relinquishment of Claim - Order 2 Rule 2, Order 2 Rule 3, Order 6 Rule 17 Code of Civil Procedure, 1908 - The trial court allowed an application under Order 6 Rule 17 CPC to delete the prayer for immovable property relief without adjudicating the pending application under Order 2 Rule 2 CPC seeking permission to relinquish that claim. The High Court held that relinquishment or giving up a claim has consequences and must be dealt with under Order 2 Rule 2 and Order 2 Rule 3 CPC, and the trial court erred in treating the application solely under Order 6 Rule 17. The impugned order was quashed and set aside, and the trial court was directed to decide both applications together. (Paras 5-6)
Issue of Consideration
Whether the trial court could allow an application for amendment of plaint under Order 6 Rule 17 CPC to delete a relief relating to immovable properties without first deciding the pending application under Order 2 Rule 2 CPC for permission to relinquish that claim.
Final Decision
The impugned order dated 21/9/2011 passed by the II Joint Civil Judge, Senior Division, Satara on Exhibit 35 is quashed and set aside. The trial court is directed to decide both applications Exhibit 29 and Exhibit 35 together.
Law Points
- Order 2 Rule 2 CPC
- Order 2 Rule 3 CPC
- Order 6 Rule 17 CPC
- relinquishment of claim
- amendment of plaint
- procedural compliance
Case Details
2011 LawText (BOM) (11) 20
WRIT PETITION NO. 9521 OF 2011
Mr.Dilip Bodke for the Petitioner, Mr.Amit Shete i/by Mr. Amit Borkar for the Respondent
Shri Dhiresh Hanmantrao Deshmukh
Sou.Shital Dhiresh Deshmukh
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Nature of Litigation
Writ petition challenging an order allowing amendment of plaint to delete relief relating to immovable properties in a divorce suit.
Remedy Sought
The petitioner (husband) sought quashing of the trial court's order dated 21/9/2011 allowing the respondent's application for amendment of plaint.
Filing Reason
The trial court allowed the amendment application under Order 6 Rule 17 CPC without first deciding the pending application under Order 2 Rule 2 CPC for permission to relinquish the claim.
Previous Decisions
The trial court had passed an order on 29/8/2011 on Exhibit 29 to 'put for order' but did not decide it. Subsequently, it allowed Exhibit 35 on 21/9/2011.
Issues
Whether the trial court could allow an amendment application under Order 6 Rule 17 CPC to delete a relief without first deciding the pending application under Order 2 Rule 2 CPC for permission to relinquish that claim.
Submissions/Arguments
The petitioner argued that the trial court erred in allowing the amendment without deciding the earlier application under Order 2 Rule 2 CPC.
The respondent sought deletion of the property relief to file separate proceedings for expeditious disposal.
Ratio Decidendi
Relinquishment or giving up of a claim in a suit is governed by Order 2 Rule 2 and Order 2 Rule 3 CPC, and an application for amendment under Order 6 Rule 17 CPC cannot be decided without first adjudicating the pending application under Order 2 Rule 2 CPC, as the consequences of relinquishment affect the parties.
Judgment Excerpts
Having regard to the Order 2 Rule 2 and Order 2 Rule 3 of the Code of Civil Procedure, the said Application Exhibit35 could not have been decided without deciding Exhibit 29 which can be said to be an application filed by the Respondent in terms of the Order 2 Rule 2 of the CPC.
Relinquishing or giving up the prayer if permitted or not permitted has a consequence for the parties, and therefore, it was necessary for the trial Court to adjudicate at least both the Applications Exhibit 29 and Exhibit 35 together if not Exhibit 29.
Procedural History
The respondent-wife filed HMP No.332 of 2010 for divorce and property relief. She filed Exhibit 29 under Order 2 Rule 2 CPC seeking permission to delete property relief. The trial court on 29/8/2011 passed an order 'to put for order' but did not decide it. She then filed Exhibit 35 under Order 6 Rule 17 CPC for amendment to delete the same relief, which was allowed on 21/9/2011. The petitioner-husband filed the present writ petition challenging that order.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order 2 Rule 2, Order 2 Rule 3, Order 6 Rule 17
