1 FARAD CONTINUATION SHEET NO.__________ IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGBAD. SECOND APPEAL NO. 922 OF 2009 Office Notes, Office Memoranda of | Coram, appearances, Court’s orders | Court’s or Judge’s orders or directions and Registrar/s orders | and Registrar’s orders | CORAM : R. M. BORDE, J. DATE : 4th March, 2010 . In view of order passed in Civil Application no. 1605/2010, leave is granted to withdraw Second Appeal no. 922/2009 and the same is disposed of as withdrawn. ( R. M. BORDE, J.) dyb / office /sa922.02.odt 2 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CIVIL APPLICATION NO. 1605 OF 2010 IN SECOND APPEAL NO. 922 OF 2002 Gopinath s/o Bhimrao Bhujang .. APPLICANT VERSUS Bhausaheb Dadarao Mule & another .. RESPONDENTS Mr. K.F. Shingare, Advocate for the applicant. ===== CORAM : R. M. BORDE, J. DATE : 4th MARCH, 2010 PER COURT : 1 Heard Mr. Shingare, learned counsel for the applicant. None appears for the respondents. 2 This is an application tendered by the applicant seeking permission to withdraw Regular Civil Suit no. 375/2004 presented to the court of Civil Judge, Jr.Dn., Badnapur with liberty to institute fresh suit founded on the same cause of action. It is contended in the application that the suit presented by the plaintiff before the trial court is in respect of land gat no. 57 3 admeasuring 3 acres and 20 gunthas of village Kinhola, Tq. Badnapur, Dist. Jalna. Plaintiff claims decree of perpetual injunction restraining the defendants from interfering and obstructing his peaceful possession. Defendants have raised objection to grant of relief on the ground that the area claimed by the plaintiff does not belong to him. The objection in respect of correctness of boundaries of disputed lands is also raised by the defendants. In the application, the applicant / original plaintiff submits that there was previous suit being Regular Civil Suit no. 366/2004 instituted by respondents / original defendants against the applicant / original plaintiff seeking a decree of perpetual injunction in respect of gat no. 50 which he claims to be of his ownership. In the said suit presented by respondent no. 1/ original defendant, it is contended that the land belonging to to the respondent extends beyond the road whereas after recording evidence of the parties, while passing decree, the trial court has restricted the order of injunction in respect of area claimed by respondents / original defendants extending upto the road. Thus, it is contended that the contention raised by the applicant / original plaintiff has been substantiated. However, while drafting the plaint of Regular Civil Suit no. 375/2004, there crept in certain error in respect of description of the suit property. Plaintiff claims that he has been denied the relief on the ground of deficiencies in pleadings. it is 4 contended that technical errors those have crept in while drafting the plaint are capable of being corrected. Plaintiff has to meet failure on account of technical defect appearing in the suit presented by him. He further contends that in view of provisions of order XXIII Rule 1 of the Code of Civil Procedure, plaintiff needs to be granted permission to withdraw the suit with liberty to file fresh suit founded on same cause of action. It appears that the requirements of sub Rule 3 of Rule 1 of Order XXIII of the Code of Civil Procedure have been complied with and as such, the applicant is entitled to seek the withdrawal of the suit with further liberty to present fresh suit. In this view of the matter, I am inclined to allow the application and, the same is allowed in terms of prayer clause 'B'. ( R. M. BORDE, J.) dyb/office/sa922.09.odt