The subsequent suit on the same cause of action for relief that could have been sought in the City Civil Court was not maintainable without prior Order II Rule 2 leave.

JUDGMENT :

G.S. Patel, J.

1. The Appellants are original Defendants Nos. 1, 2 & 3 to the Suit. They have come up in appeal against an order of 26th March 2019 dismissing their Notice of Motion No. 3914 of 2008. By that Motion, Defendants Nos. 1, 2 & 3 sought an order of dismissal of the Suit saying that it had been instituted contrary to the provisions of Order II Rule 2 read with Order II Rule 1 of the Code of Civil Procedure, 1908 (“CPC”), also read with Section 9. The interim relief sought in the Motion was for a stay of the Plaintiff’s Notice of Motion No 3384 of 2008 for interim relief.

2. The CPC violation alleged was that the High Court Suit was instituted during the pendency of a previous Suit No. 726 of 2008 filed by these very Plaintiffs in the City Civil Court. No leave under Order II Rule 2 was sought before instituting the High Court Suit. That leave was obtained only after the later suit was filed in the High Court, and the High Court suit contains reliefs that could have been sought in the City Civil Court as well.

3. For more convenient reference, we will take the array of parties as they stand in the High Court suit. The two Plaintiffs, Afzal and Aslam are the sons of Ayub Mehboob Khan, since deceased, from his wife Rahat. The 3rd Defendant, Farida, is the deceased Ayub’s second wife. The 1st Defendant, Mehboob, is Ayub and Farida’s son, and the 2nd Defendant, Yasmin, is their daughter. Afzal, Aslam, Mehboob and Yasmin are all children of Ayub, but from different mothers.

4. The 4th Defendant, Arafat, claims to have been adopted by Farida and Ayub. Defendant No. 5 is a solicitor of this Court. He and Defendant No. 6 are supposed to be the executors of a Will dated 17th September 2007 said to have been made by Ayub. The 7th Defendant is a private limited company. Defendants Nos. 8 and 9 are directors of Defendant No. 7 and the sons of one Mehboob Khan (not to be confused with the 1st Defendant), Ayub’s father.

5. Ayub’s father was the legendary Hindi film maker Mehboob Khan who set up and established the famous Mehboob Studios at Hill Road, Bandra. It was Mehboob Khan who incorporated the 7th Defendant Company that bears his name. The equity of the 7th Defendant Company was closely held by Mehboob Khan’s family, i.e., his children and grandchildren. According to Afzal and Aslam, after Mehboob Khan died, his son Ayub took over the responsibility for the business and the studio. Afzal and Aslam claim that Ayub was allotted 1132 shares in the 7th Defendant.

6. On 8th January 1965, Ayub divorced his 1st wife Rahat. There was a deed of divorce. Ayub took custody of the two Plaintiffs, Afzal and Aslam, both minors at that time. A few months later, on 6th October 1966, Ayub married Farida.

7. Apparently, and over time, there were differences between Afzal and Aslam on the one hand and Farida and her daughter Yasmin on the other. We do not propose to spend time with these details. There is also a controversy about whether Arafat was ever validly adopted by Farida and Ayub. Further details regarding the disputes about the shares in the 7th Defendant are not really material for our purposes today. There was litigation in this regard in 1994. It seems that on 3rd January 2004, Ayub and Farida’s marriage was registered under provisions of the Special Marriage Act, 1954. Then there were disputes in the Company Court and before the Company Law Board.

8. Ayub is said to have made a Will on 17th September 2007. In this, he is said to have left his entire estate to his Mehboob, the 1st Defendant, his daughter, Yasmin, the 2nd Defendant, and his widow Farida, the 3rd Defendant, and completely excluded Afzal and Aslam, the two Plaintiffs. Ayub died on 14th March 2008.

9. It is very shortly after this that the present set of litigations came to be filed. On 17th April 2008, Afzal and Aslam filed City Civil Court Suit No. 726 of 2008. A copy of the Plaint filed before the City Civil Court at Dindoshi is at page 53 of the Appeal paper-book. T