Dismissed¶22

Shri. Mahendra Jyotiram Bhosale v. Sou. Jyoti Pravin Bhosale and Anr.

Bombay HC18 Jun 2025CRA/361/2025

Case brief

AI extract

What is this about?

Bombay High Court (Gauri Godse, J.), 18 July 2025, Civil Revision Application No. 361 of 2025 — Mahendra Jyotiram Bhosale v. Jyoti Pravin Bhosale & Anr.: defendant's challenge to rejection of Order VII Rule 11(d) CPC application arguing plaint barred under Order II Rule 2 CPC as a second suit without leave; held cause of action (execution of mortgage deed) differs from earlier specific-performance suit; objection not decidable at Order VII Rule 11 stage; revision application dismissed; objections open at trial.

What did the court decide?

The cause of action pleaded in the present suit is different from that in the earlier suit: in the present suit the cause of action is pleaded on the ground of execution of the mortgage document, whereas the initial suit sought specific performance. ¶16

Shri. Mahendra Jyotiram Bhosale vs Sou. Jyoti Pravin Bhosale and Anr. — Bombay HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Dismissed

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Issue for consideration

Whether the plaint in the present suit (seeking declaration that the conditional mortgage deed is illegal) deserves to be rejected at the threshold under Order VII Rule 11(d) CPC as barred under Order II Rule 2 CPC, the suit being a second suit filed without seeking leave under Order II Rule 2.

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Court's answer

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Ratio / Principle

Considering the pleadings, the view taken by the trial court (that, given the different cause of action pleaded regarding execution of the mortgage deed and the rival pleadings on the Order II Rule 2 bar, the objection cannot be decided at the Order VII Rule 11 stage) does not require any interference by this court.

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Key takeaways

The observations and findings recorded in the impugned order are clarified to be restricted to the extent of deciding the application under Order VII Rule 11 of the CPC.ratio¶22
It remains open to the defendant to raise objections at the time of settlement of issues and in the trial; the rival contentions of the parties on the merits of the suit are kept open.obiter¶23

Detailed headnote1 paragraphs

Civil Revision Application No. 361 of 2025 (Bombay High Court, Gauri Godse, J., 18 July 2025) — filed by the defendant challenging the trial court's order rejecting his application under Order VII Rule 11(d) CPC seeking rejection of the plaint at the threshold as barred under Order II Rule 2 CPC, the suit being alleged to be a second suit filed without leave under Order II Rule 2. The plaintiff's earlier suit sought specific performance; the present suit seeks a declaration that the conditional mortgage deed is illegal, with cause of action pleaded on the execution of the mortgage document. Holding: the cause of action in the present suit is different from the earlier suit, and given the rival pleadings on the Order II Rule 2 bar the objection cannot be decided at the Order VII Rule 11 stage; the trial court's view required no interference. The civil revision application was dismissed, with the observations in the impugned order restricted to the Order VII Rule 11 stage, the defendant left free to raise objections at settlement of issues and trial, and the merits kept open.

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9-CRA-361-2025.docx

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rrpillai

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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CIVIL REVISION APPLICATION NO. 361 OF 2025

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Shri Mahendra Jyotiram Bhosale … Applicant Vs. Sou. Jyoti Pravin Bhosale and Another … Respondents

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Mr. Kiran Kumar Phakade for the Applicant. Mr. Vaibhav R. Gaikwad for the Respondents.

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CORAM : GAURI GODSE, J. DATE : 18^th JULY 2025

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ORDER :

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This civil revision application is filed by the defendant to challenge the order rejecting the application under Order VII Rule 11(d) of the Code of Civil Procedure, 1908 (“CPC”).

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Learned counsel for the applicant submits that the present suit is a second suit filed without seeking leave under

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Order II Rule 2 of the CPC. He therefore submits that the plaint deserves to be rejected at the threshold as barred under Order II Rule 2. He submits that the trial court has not considered the grounds raised regarding filing of the subsequent suit without seeking leave under Order II Rule 2 of the CPC.

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Digitally signed by RAJESHWARI RAJESHWARIRAMESH RAMESH PILLAI PILLAI Date: 2025.07.24 23:35:56 +0200

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9-CRA-361-2025.docx

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I have perused the papers of the Civil Revision

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Application. The plaintiff has filed the present suit seeking a declaration that the conditional mortgage deed is illegal. The initial suit was filed by the plaintiff seeking specific performance. The filing of the earlier suit is pleaded in the present suit. The cause of action pleaded for filing the present suit is in paragraph 15 of the plaint. The cause of action for the present suit is different than in the earlier suit. In the present suit cause of action is pleaded on the ground of execution of the mortgage document.

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Considering the different cause of action pleaded in the present suit, the trial court has examined the objections raised on behalf of the defendants. The trial court held that in view of the cause of action pleaded regarding execution of the mortgage deed, the present suit filed on a different cause of action cannot be rejected at the threshold. In view of the rival pleadings with regard to the bar under Order II Rule 2 the objection cannot be decided at the stage of Order VII Rule 11 of the CPC.

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5. Considering the pleadings, the view taken by the trial

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court would not require any interference by this court. The

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9-CRA-361-2025.docx

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civil revision application is therefore dismissed. It is clarified that the observations and findings recorded in the impugned order are restricted to the extent of deciding the application under Order VII Rule 11 of the CPC.

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It would always be open for the defendant to raise objections at the time of settlement of issue and in the trial. The rival contentions of the parties on merits of the suit are

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kept open.

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[GAURI GODSE, J.]

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Shri. Mahendra Jyotiram Bhosale v. Sou. Jyoti Pravin Bhosale and Anr.

Case brief

What is this about?

What did the court decide?

Shri. Mahendra Jyotiram Bhosale v. Sou. Jyoti Pravin Bhosale and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

Issues for consideration

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

All orders in this case

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