Bombay High Court

SURESH S/O BALBHIM PALVEversusPANDHARINATH S/O VINAYAK PALVE

Disposal: Rejected at Admission stage

Holding

The application is dismissed, but the petitioners are at liberty to file a fresh application under Order II Rule 2 of the CPC.

Summary

The petitioners filed a civil revision seeking to set aside a trial court order that rejected their application to stay a second suit for partition. They argued that the second suit was barred under Order II Rule 2 of the Civil Procedure Code, 1908, on the ground of res judicata. The respondent contended that no such ground was raised in the original plaint rejection application and that the trial court had not considered Order II Rule 2. The High Court observed that the petitioners were free to file a fresh application under Order II Rule 2 if they wished, but such an application was not before the court. Consequently, the court dismissed the revision and disposed of the present application. The court further indicated that any future application under Order II Rule 2 would be decided on its own merits.

Issues considered

Whether the second suit for partition is maintainable in view of Order II Rule 2 of the CPC and the doctrine of res judicata.

Legislation cited

Code of Civil Procedure, 1908 — s. Order II Rule 2

Subjects

civil procedure
res judicata
partition suit
maintainability
Order II Rule 2
CPC

Judgment

2026:BHC-AUG:46129


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                                                   -1-


                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    BENCH AT AURANGABAD

                        976 CIVIL REVISION APPLICATION NO. 111 OF 2026

                                Suresh s/o Balbhim Palve and another
                                                VERSUS
                            Pandharinath s/o Vinayak Palve and another
                                                    ...
                 Advocate for the Petitioner : Mr. Avinash A. Khande
                 Advocate for Respondent : Mr. Yogesh P. Deshmukh
                                                    …..

                                      CORAM : SANJAY A. DESHMUKH, J.
                                      DATED : 01st OCTOBER, 2026

                 PER COURT :-


                 1.    Heard both sides. Learned advocate for the applicants submits

                 that because of earlier suit, the second suit is not maintainable with

                 respect to the prayer to the partition, as contemplated by Order II

                 Rule 2 of the Civil Procedure Code, 1908 (in short “CPC”).



                 2.    Learned advocate for respondent No.1 pointed out that no

                 such ground was raised in the application for rejection of the plaint.

                 He also referred to the impugned order and submitted that the

                 provisions of Order II Rule 2 of the CPC were not canvassed.

                 Therefore, the reasons recorded in the impugned order make it clear

                 that no plea under Order II Rule 2 of the CPC or of res-judicata was

                 raised. The learned Trial Court, after considering the matter and

                 assigning convincing reasons, has rightly rejected the application.
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                                  -2-



3.       Considering the peculiar set of facts, the applicants are at

liberty to file application under Order II Rule 2 of the CPC if feels it

necessary. The application is disposed of. If the application is filed

as per the liberty given above, said application be decided on its own

merit.



                                   (SANJAY A. DESHMUKH, J.)

rlj/

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