IMPORTANT POINT
Distinct causes of action in separate petitions do not trigger the bar under Order 2 Rule 2 of the CPC, allowing for independent claims.

JUDGEMENT :

Firdosh P. Pooniwalla, J.

1. The present Appeal is filed challenging the Judgement dated 31st March 2021 passed by the Family Court No.3 at Bandra, Mumbai, in Petition No. B-79 of 2017, whereby the learned Family Court Judge dismissed the said Petition under Order 2 Rule 2 of the Code of Civil Procedure, 1908 (“the CPC”). The said Petition No. B-79 of 2017 was filed by the Appellant seeking a declaration of sole ownership of Flat No. 104, 1st Floor, ‘B’ wing, Ambar Lok Rachana Co-operative Housing Society Limited, Amar Nagar, Goregaon Link Road, Mulund (West), Mumbai 400 082 (“the Suit Flat”), standing in the joint name of the Appellant and the Respondent. In the alternative it was prayed for auctioning the Suit Flat and dividing the sale proceeds in equal shares between the parties, along with other ancillary reliefs.

2. On 15th May 1967, the marriage between the Appellant and the Respondent was solemnized as per the Hindu Vedic Rites. On 6th April 1968 and 4th April 1970 respectively, two sons were born to the Appellant and the Respondent from the said wedlock namely – Sathyapal and Dharmaraj, and in 1996-97, the Suit Flat was purchased in the joint names of the Appellant and the Respondent.

3. In 2013, the Appellant filed a Petition for Divorce against the Respondent before the Additional Senior Civil Judge, Udupi, bearing M. C. No.52 of 2013, on the ground of cruelty and desertion, and an ex-parte decree was passed on 30th September 2013 dissolving the marriage.

4. Being aggrieved by the ex-parte decree of divorce, the Respondent filed Miscellaneous Application No. 4 of 2019 before the Principal Senior Civil Judge, Udupi to set aside the said decree dated 30th September 2o13. The said Application came to be dismissed by an Order dated 13th November 2019. An Appeal, being Appeal No. 1 of 2020, was filed by the Respondent before the Court of District and Sessions Judge at Udupi challenging the said Order of dismissal dated 13th November 2019. We are informed by the learned Counsel for the Respondent that the said Appeal has also been dismissed. In other words, the decree granting a divorce to the Appellant herein has attained finality.

5. In the meanwhile, in December 2017, another Petition was filed by the Appellant, being Petition No.B-79 of 2017, before the Family Court No.3 at Bandra, seeking reliefs in respect of the Suit Flat and other ancillary reliefs. Thereafter, on 27th August 2019, an application was filed by the Appellant for amendment of the said Petition by adding an additional prayer. By an Order dated 16th November 2019, the Family Court at Bandra rejected the said Application on the ground that issues had already been framed, evidence was filed, and cross-examination had already begun. The Appellant challenged the said Order in this Court by filing a Writ Petition No. 128 of 2020. By Order dated 25th February 2020, this Court allowed this Writ Petition and permitted the Appellant herein to carry out the amendment by observing that the said relief [which was sought by way of an amendment] would be necessary for the Trial Court in deciding the real controversy between the parties. The prayers in Petition No.B-79 of 2017, after the amendment, read as under:-

“(a) That this Hon’ble Court be pleased to declare that the Petitioner is sole owner in respect of Suit Flat i.e. Flat No.B-104. 1st floor, Ambar Lok Rachana CHS Ltd. Mulund (W), Mumbai 400 082;

(b) That this Hon’ble Court be pleased to declare that Respondent has no any title or interest of any nature whatsoever in respect of Suit Flat i.e. Flat No.B-104, 1st floor, Ambar Lok Rachana CHS Ltd., Mulund (W), Mumbai 400 082;

(c) That this Hon’ble Court be pleased to pass a Mandatory Order directing the Respondent to quit, vacate and handover the free, vacant and peaceful possession of the suit premises i.e. Flat No.B-104, 1st floor, Ambar Lok Rachana CHS Ltd., Mulund (W), Mumbai 400 082;

(d) That this Hon’ble Court be pleased to pass a Permanent Order and in