Case Note & Summary
The petitioners, Smt. Nikita Manohar More and Ms. Priyanka Baban Patil, filed a Writ Petition under Article 227 of the Constitution of India challenging an order dated 9th September 2016 passed by the Court of Jt. Civil Judge Junior Division, Palghar. The trial court had rejected their application at Exhibit-7 filed under Order 2 Rule 2(3) of the Code of Civil Procedure, 1908 (CPC). The petitioners had initially filed a suit simpliciter for injunction against the respondent, Nitesh Pundlik Patil, to restrain him from alienating joint family properties, as they apprehended that the respondent would create third-party interests. They intended to later file a suit for partition and separate possession of their share in the suit properties, but needed time to collect documents. To preserve their right to claim partition, they sought leave under Order 2 Rule 2(3) CPC to omit that relief from the present suit. The trial court rejected the application on the ground that the petitioners were not coparceners and therefore not eligible to file a suit for partition. The High Court held that the trial court's reasoning was unsustainable. The scope of Order 2 Rule 2(3) CPC is limited to granting leave to omit a relief; the merits of whether the petitioners are coparceners or entitled to partition are irrelevant at this stage. The High Court set aside the impugned order and allowed the application, granting the petitioners leave to omit the relief of partition and to file a separate suit for partition in the future. The court directed that the petitioners' right to seek partition is reserved.
Headnote
A) Civil Procedure Code - Order 2 Rule 2(3) - Leave to Omit Relief - Scope - The trial court rejected the petitioners' application for leave to omit the relief of partition in a suit for injunction, holding that the petitioners were not coparceners and thus not entitled to partition. The High Court held that the question of whether the petitioners are coparceners or entitled to partition is irrelevant for deciding an application under Order 2 Rule 2(3) CPC. The only consideration is whether the petitioners have a right to sue for the omitted relief and whether the omission is bona fide. The impugned order was set aside and the application was allowed. (Paras 4-5)
Issue of Consideration
Whether the trial court can reject an application under Order 2 Rule 2(3) CPC seeking leave to omit a relief (partition) on the ground that the applicants are not coparceners and thus not entitled to partition.
Final Decision
The High Court allowed the Writ Petition, set aside the impugned order dated 9th September 2016, and allowed the application at Exhibit-7 under Order 2 Rule 2(3) CPC. The petitioners are granted leave to omit the relief of partition in the present suit and are at liberty to file a separate suit for partition. The right of the petitioners to seek partition is reserved.
Law Points
- Order 2 Rule 2(3) CPC
- scope of leave to omit relief
- partition suit
- coparcenary
- injunction
