1. The petitioner/plaintiff has filed the present petition 24.2.2016 by which the application filed under Order 7 rule 11 of the CPC has been disposed of and the plaintiff has been directed under Order 6 rule 16 of the CPC to omit the relief regarding the properties which are not mentioned in the previous suit.

2. In this petition, learned counsel appearing for respondents No.1 and 2 has raised a preliminary objection in respect of maintainability of the writ petition. According to Shri Jain, learned senior counsel, by the impugned order, the civil suit has partially been dismissed in respect of the properties which were not mentioned in the previous suit, therefore, the first appeal lies against the said order. The petitioner may be permitted to withdraw this petition with liberty to file the first appeal or he may be permitted to convert this petition into first appeal.

3. Shri Zelawat, learned senior counsel appearing for the petitioner, submits that there is no provision in the Civil Procedure Code in respect of dismissal of the suit partially. The impugned order is passed under Order 6 rule 16 of the CPC and the said order is not appealable, therefore, the plaintiff/petitioner has rightly filed this writ petition, hence the same is maintainable before this Court.

4. Earlier, petitioner/plaintiff – Smt. Sunita Sharma filed the civil suit along with one Smt. Chanu Sharma in the year 2013 claiming 1/6 share in the suit house No. 39, Freeganj, Ujjain and also challenged the sale-deed dated 10.3.2011. By order dated 9.7.2013, the plaintiffs were granted last opportunity to pay the Court-fees of Rs. 1,50,000/-. On 25.7.2013, plaintiffs filed an application under Order 23 rule 3 of CPC seeking permission to withdraw the suit with liberty to file a fresh suit. The learned trial Court dismissed the said application and also dismissed the suit under Order 7 rule 11 of the CPC Thereafter, only Smt. Sunita Sharma, the present petitioner filed the fresh suit for the relief of declaration, permanent injunction and partition of House No. 39, Freeganj, Ujjain and House No. 82, 'Satkar Bhawan', Teen Batti Chouraha, Ujjain.

5. After notice, respondents/defendants No. 1 and 2 filed an application under Order 7 rule 11 of the CPC by submitting that the second suit is not maintainable in respect of House No. 82 under the provisions of Order 2 rule 2 of the CPC and the suit is liable to be dismissed.

6. The learned trial Court vide order dated 24.2.2016 disposed of the application and held that after dismissal of the previous under Order 7, rule 11, the plaintiff can bring a fresh suit for the same cause of action, but by virtue of Order 2 rule 2, he cannot bring the suit for those properties which were not the subject matter of the earlier suit, hence directed the plaintiff to delete/omit the relief in respect of the properties under Order 6 rule 16 of CPC.

7. According to Shri V.K. Jain Sr. Advocate appearing for respondents No. 1 and 2, the present suit has been dismissed in respect of House No. 82, therefore, the writ petition is not maintainable. He further submits that the objection in respect of Order 2 rule 2 of CPC is not required to be taken in the written statement and no issue is required to be framed. The defendants have successfully demonstrated from the averments made in the plaint itself that the subsequent suit is barred under the provisions of Order 2 rule 2 of the CPC In support of his contention, he has placed reliance over the judgments of apex Court in the case of Church of Christ Charitable Trust v. Ponniamman Educational Trust : (2012) 8 SCC 706; Shamsher Singh v. Rajinder Prashad : (1973) 2 SCC 524; Rajni Rani v. Khairati Lal : 2015 (4) MPLJ 12; Sejal Glass Ltd. v. Navilan Merchants Pvt. Ltd. : AIR 2017 SC 4477; judgment of Karnataka High Court in the case of M/s. Maruthi Enterprises v. Smt. Muniyanjamma : AIR 1987 Kar. 264; judgment of this Court in the case of Jamshedji Dubash v. Meharbai Rustumji Dubash : 2003 (3) MP