Writ Petition No. 5403 of 2012

20th July, 2012

Petitioner Counsel: Mr. MAYUR KHANDEPARKAR, Mr. M.S. SHAH
Respondent Counsel: Mr. NIMISH PANDYA, Ms. MEENA SHAH

JUDGMENT

JUDGMENT :- At the out set, the learned counsel appearing for the Petitioners seeks deletion of the Respondent No.4. The Respondent No.4 is accordingly deleted at the risk of the Petitioners. Amendment to be carried out forthwith.

2. Rule, with the consent of the parties made returnable forwith and heard.

3. The above Petition takes exception to the order dated 2/3/2012 passed by the learned Judge, City Civil Court, Greater Mumbai, by which order the application filed by the Petitioners for leave under Order 2 Rule 2 of the Code of Civil Procedure came to be rejected.

4. It is not necessary to burden this order with unnecessary facts. Suffice it to say that the case of the Petitioners is that the transaction in respect of the sale of flat being Flat No.1302 took place between the parties. It was the case of the Petitioners that the Respondent Nos.1 to 3 herein had agreed to sell the said flat in the Jogani Apartments Cooperative Housing Society for which according to the Petitioners the consideration fixed was Rs.10.21 crores. It was further the case of the Petitioners that token amount of Rs.1000/-in cash was given to the First Respondent through a broker and that a note dated 20/09/2010 regarding the price and date was signed by the First Respondent. It is on the basis of the said fact that the suit in question came to be filed by the Petitioners being S.C. Suit No.653 of 2012 principally for the relief of injunction restraining the Respondents from disposing of the said flat. It is required to be noted that in the plaint the Petitioners have averred in Para 15 to the following effect :

"The Plaintiffs say that though the cause of action has arisen in favour of the Plaintiffs to seek the reliefs of the specific performance of the concluded agreement, but due to the urgency, the Plaintiffs are unable to file the substantial suit. The Plaintiffs therefore crave leave to the Hon'ble Court to reserve their rights as contemplated under Order 2 Rule 2 of the C.P.C. to file substantial suit of specific performance. By the present suit the Plaintiffs are seeking relief only of injunction."

5. It is also required to be noted that in prayer clause (a), the Petitioner had sought leave from the Court under Order 2 Rule 2 of the Code of Civil Procedure to file a substantial suit for specific performance. In terms of the said averment in the Plaint and the relief sought which is adverted to herein above and considering the fact that the suit for injunction as filed by them would serve no purpose, the Petitioners moved the instant application under Order 2 Rule 2 of the Code of Civil Procedure for leave.

6. The relief sought was leave to file a suit for specific performance of the alleged agreement entered into between the Petitioners and the Respondent Nos.1 and 3. It seems that no reply was filed to the application for seeking leave. The trial Court as can be seen from the reading of the said order has recorded findings on the merits of the Petitioners' case for specific performance which findings can be found in Paras 6 and 7 of the impugned order. The trial Court has gone to the extent of observing that there is no concluded contract or agreement of sale between the parties which is borne out by the material on record.

7. In my view, the trial Court would not have been judgmental as regards the merits of the case of the Plaintiffs at the stage of considering the application under Order 2 Rule 2 of the Code of Civil Procedure, more so in the light of the fact that there was already an averment in the plaint as well in the prayer clause. If the said course of action is permitted the provision of Order 2 Rule 2 of the CPC could be turned nugatory as a party who for justifiable reasons fails to pray for relief/reliefs arising out of the same cause of action, would thereafter be prevented from doing so, if at the stage of the consideration of the application for leave the Court records findings on merits of the said relief. At the said stage, the Court is only obliged to see whether the case of the Plaintiff as made out in the application for grant of such leave could be accepted. In the facts of the present case, where the Plaintiffs have already averred in the plaint (See para 15) and have also prayed for leave by way of prayer clause (a), the trial Court ought to have granted the said leave by putting the Plaintiffs to terms. The impugned order therefore would have to be quashed and set aside and is accordingly quashed and set aside, and resultantly, the application under Order 2 Rule 2 of the Code of Civil Procedure would be required to be allowed and is accordingly allowed. If a suit for specific performance is to be filed by the Petitioners, the same to be done by the Petitioners within a period of six weeks from date . At the end of the said period of six weeks, the benefit of this order would not enure to the Petitioners. The contentions of the Respondents on merits of the case are not dealt with and it is for the Respondents to urge the said contentions as and when the suit for specific performance is filed. Rule is accordingly made absolute in the aforesaid terms with parties to bear their respective costs. Needless to state that the said suit for specific performance, if filed would be decided on its own merits and in accordance with law.

Ordered accordingly.