1 WP 3161/2011 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3161 OF 2011 Smt. Chandrabhaga Namdeo Sonawane & Anr. .. Petitioners V/s Pandharinath Ramchandra Choudhari .. Respondent Mr. Vikram Chavan for the petitioners. Mr. Madhav Jamdar for the respondent. CORAM : D.G. KARNIK, J. DATE : 1ST AUGUST 2011 P.C. : 1. The petition is directed against an order dated 6th April 2011 passed by the Civil Judge, Junior Division, Pune, allowing the respondent's application for withdrawal of the suit with liberty to file a fresh suit in respect of the same subject matter under Order 23 Rule 1 of the Code of Civil Procedure. 2. The respondent (plaintiff) claims to be owner of the property bearing survey no. 4/2B/1A/2 admeasuring 7.50 Ares situate in revenue village Walje. He filed a suit against the petitioners alleging that they had carried out construction on a portion of the property by committing encroachment on a portion of his land. Though the plaintiff had given full 2 WP 3161/2011 description of the land owned by him in the suit, he had not given the description of that portion on which the encroachment was committed. According to the plaintiff, the encroachment was committed only on a portion of the property admeasuring 1700 sq. ft. or thereabout. In the light of the fact that the proper description of the encroached portion was not given, the respondent applied for withdrawal of the suit with liberty to file a fresh suit. 3. Learned counsel for the petitioners submitted that not giving of full and proper description of the encroached portion is not a formal defect and therefore the trial Court committed error in allowing the application for withdrawal of the suit with liberty to file a fresh suit. 4. Order 7 Rule 3 of the Code of Civil procedure (for short "the Code") says that where the subject matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers. The Bombay amendment to Rule 3 of Order 7 of the Code specifies that in case of encroachment, a sketch showing 3 WP 3161/2011 approximately as far as possible the location and extent of the encroached portion shall also be filed along with the plaint. It is thus the requirement of law that the plaintiff must give full and proper description of the encroached portion in respect of which he claims decree. He is also required to give a sketch showing approximately as far as possible the location and extent of the encroachment. Both these things were not done in the plaint. Thus there were defects in the plaint on account of which the suit was likely to fail. In my view, these are formal defects and therefore the Court was right in granting the permission. 5. Learned counsel for the petitioners then submitted that if a fresh suit is filed, the same would be barred by limitation and therefore the permission should not have been granted. Order 23 Rule 1 of the Code does not speak anything about the limitation. Needless to say that if any fresh suit is filed, it would be open to the petitioner to raise objection regarding limitation in that suit That cannot be ground for refusal of permission to withdraw the present suit. 6. There is no merit in the petition which is hereby rejected. (D.G. KARNIK, J.)