1 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL JURISDICTION WRIT PETITION NO. 9591 OF 2009 Baliram Haribhau Kharmale & Ors. ...Petitioners V/s. Shantaram Shriram Kharmale & Ors. ...Respondents. ----- Mr.Uday B. Nighot, for the Petitioners. Mr.P.S. Dani, for Respondent Nos.1 and 2. ------ CORAM : S.J. VAZIFDAR, J. DATED : 3 rd MARCH, 2010. P.C: 1. Rule. By consent, rule is made returnable forthwith and heard finally. 2. The Plaintiffs have filed the suit for partition. The Plaintiffs are admittedly in the possession of part of the properties of which partition is sought. According to the Petitioners i.e. Defendant Nos.1 to 13, the suit properties have already been partitioned, and that in pursuance thereto, inter alia, Respondent Nos.1 and 2 i.e Plaintiffs were put in possession of the properties of which they are entitled in possession. Part of these properties were also sold by Respondent Nos. 1 and 2 i.e. Plaintiffs. 2 3. In this suit, the Petitioner has filed an application for interim reliefs. By an Order dated 31.1.2008, the trial court ordered the Plaintiffs not to change the suit property by constructing the building, pending the disposal of the suit. 4. One of the contentions raised by the Petitioners was that the suit properties were not properly described and that certain necessary parties have not been impleaded. In view thereof, Respondent Nos.1 and 2 filed an application under Order 23 Rule 1 of Code of Civil Procedure, 1908, seeking permission to withdraw the suit with liberty to file a fresh suit in respect of the said subject matter. By the impugned order this application was granted. 5. As stated above, the application in which an order was passed, was filed on the basis that there were legal technical defects, such as mis descriptions of the suit properties and necessary parties not having been impleaded. The same does not fall under Order 23 Rule 1 of the Code of Civil Procedure especially when such defects, if any, can be rectified by an application for amendment of the Plaint. It is not the Plaintiff’s case that an application for amendment was made that was rejected. Had that been so it may have been a different matter. The Plaintiff, however, in the first instance shall make an application for amendment to rectify the alleged defects. 3 6. I would have modified the order permitting withdrawal of the suit simplicitor i.e. without liberty to file a fresh suit in view of the Petitioners having expressed that they do not wished to be transposed as Plaintiffs, which they would have been entitled as this being partition suit. However, the Plaintiffs insist on their application for liberty to file a fresh suit. 7. In the circumstances, the impugned order must be set aside with liberty to the Plaintiffs/Respondent Nos.1 and 2 to file an application for amendment. 8. It must be clarified that in the facts of this case, this order will not review interim orders. There have been several changes from the date of the order i.e. 21.8.2009 to date. It would be appropriate to grant liberty to the parties to take out an interim application before the trial Court, if they so desire. 9. In the circumstances, the Writ Petition is dismissed with following orders:- a) The impugned order is set aside; b) The Plaintiff is at liberty to take out an application for amendment of the plaint; c) Parties are at liberty to make an application for interim reliefs before the Trial Court. 4