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Judgment
R.M. Savant, J.—Rule, with consent of the parties made returnable forthwith and heard.
The above Petition takes exception to the order dated 21/9/2011 passed by the II Joint Civil Judge, Senior Division, Satara by which order the Application Exhibit 35 for amendment of the plaint so as to delete the relief sought in respect of the immovable properties in H.M.P. No.332 of 2010 came to be allowed.
It is not necessary to burden this Court with unnecessary facts in view of the limited controversy that is involved.
It is required to be noted that the said HMP No.332 of 2010 has been filed by the Respondent herein for divorce, as also a claim in respect of the immovable properties. The Respondent had moved an application Exhibit 29 for being permitted to delete the prayer for relief in so far as immovable properties was concerned and for filing separate proceedings for the same, which according to her, could be decided expeditiously. On the said Application Exhibit 29 the trial Court has passed an order dated 29/8/2011 to the following effect "to put for order". It appears that thereafter the said Application was not dealt with. However, the Respondent filed an Application Exhibit 35 for amendment of the plaint so as to delete the prayer in so far as immovable properties are concerned. The said Application Exhibit 35 came to be allowed by the impugned order and Para 24(C) relating to the immoveable properties came to be deleted.
Having regard to the Order 2 Rule 2 and Order 2 Rule 3 of the Code of Civil Procedure, the said Application Exhibit 35 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.
In so far as relinquishing or giving up any claim in the suit is concerned, the same is governed by the provisions as contained in Order 2 Rule 2 and Order 2 Rule 3 of the CPC. The trial Court has erred in deciding the said Application Exhibit 35 by merely treating it as one filed under Order 6 Rule 17 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. In that view of the matter, the impugned order dated 21/9/2011 passed on Exhibit 35 is required to be quashed and set aside and is accordingly quashed and set aside.
In view of the setting aside of the said order, even if the amendments are carried out in the plaint, the same would have no consequence. The trial Court is hereby directed to hear the Applications Exhibit 29 and Exhibit 35 together on the touchstone of Order 2, Rule 2 and Order 2 Rule 3 of the Code of Civil Procedure. On remand the trial Court to hear and decide the said applications within a period of six weeks of the first appearance of the parties. Rule is accordingly made absolute in the aforesaid terms with the parties to bear their respective costs.