1. Rule. By consent rule is made returnable forthwith and heard finally.

2. The City Civil Court, Mumbai by its order dated 8th April, 2008 has rejected leave to the petitioner-plaintiff under Order 2 Rule 2 of the Code of Civil Procedure, 1908 to omit the relief of specific performance in respect of the agreement in question from the purview of the suit. Aggrieved by this order the petitioner has filed the present petition.

3. The subject-matter of the suit filed by the petitioner is a joint venture agreement dated 10-8-1994 ("the said agreement" for short) entered into between the petitioner, who is developer and the respondent, who is the owner of the suit property. According to the petitioner the respondent is trying to wriggle out of his commitments under the said agreement which necessitated the filing of the suit.

4. The main prayers in the plaint read thus:-

"(a) that this Hon’ble Court be pleased to grant leave to the Plaintiff under Order 11, Rule 2 of Code of Civil Procedure 1908, to omit the relief of specific performance of the Agreement dated 10.8.1994, being Exhibit ’D’ to the plaint from the purview of the present suit;

(b) that this Hon’ble Court be pleased to hold and declare that the Agreement dated 10th August,1994, being Exhibit ’D’ to the Plaint is subsists and binding on the Defendant;

(c) that the Hon’ble Court be pleased to hold and declare that the Plaintiff alone has a right to prosecute suit No.5750 of 1994 pending in this Hon’ble Court;

(d) That by permanent injunction this Hon’ble Court be pleased to restrain the Defendant from disturbing the possession of the Plaintiff of the suit property.

(e) That by permanent order of injunction this Hon’ble Court be pleased to restrain the Defendant from committing breach of Joint Venture Agreement dated 10th August, 1994 and/or creating any third party rights in respect of the suit property.

5. The petitioner has averred in the plaint that he reserves his right to claim specific performance of the said agreement at an appropriate time. According to the petitioner he is entitled to enforce a negative covenant contained in clause 27 of the said agreement without seeking specific performance of the said agreement. The said clause 27 provides that under any circumstances the agreement shall not be revoked by either party.

6. The petitioner accordingly applied to the Trial Court to seek leave under Order 2 Rule 2 of the Code of Civil Procedure, 1908 for permission to omit the claim relating to specific performance of the agreement from the purview of the suit which was rejected by the impugned order.

7. The learned Counsel for the petitioner, relying upon the Order 2 Rule 2(3) of C.P.C., submitted that the petitioner is entitled to be granted leave to omit any relief in the suit and the Trial Court had erred in rejecting the leave. The learned Counsel argued that the petitioner is entitled to seek a declaration that the said agreement is valid, subsisting and binding on the respondent, in view of the dispute between the petitioner and the respondent and apprehension of the petitioner that the respondent may commit breach of the said agreement. Relying upon section 42 of the Specific Relief Act, 1963, the learned Counsel for the pointed out that the Court is not precluded from granting an injunction to perform negative agreement and therefore, such leave as sought by the petitioner, can be granted.

8. The learned counsel for the petitioner contended that by granting leave no substantial right of the respondent is affected and that the granting of leave is not an adjudicating process and it is in the form of intimation to the Court that the plaintiff is reserving his right to file a suit in respect of some reliefs which is permissible in law. The learned Counsel relied on the case of Canning Mitra