1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4709 OF 2009 Shashikant Haribhau Bandewar .. Petitioner Versus Bhalchandra Haribhau Bandewar .. Respondent Mr. V. D. Raut for the petitioner Shri Sanjay Kshirsagar for the Respondent CORAM: MRS. MRIDULA BHATKAR, J. DATED: 13th July, 2009 J U D G E M E N T 1. Heard the Learned Counsels for the parties. By consent of the parties, taken up for final hearing. 2. This Writ petition is filed by the petitioner-Original defendant challenging the order passed by the learned Civil Judge, Junior Division, Pune, dated 31st January, 2009 allowing the Respondent- Original plaintiff to withdraw the suit under Order 23(1) Rule 3 of the Civil Procedure Code. 3. Learned Counsel appearing for the petitioner has submitted that the learned Trial Judge should not have passed such order allowing withdrawal with liberty to file fresh suit. It is submitted by the learned counsel that the liberty to file fresh suit ought to have granted as contemplated under Rule 1(3) Order 23 of the Civil Procedure Code and the application Exh. 26 was not made accordingly. It is further argued that 2 the withdrawal of the Suit will amount to withdrawal of admissions given by the plaintiff in his Suit. It is submitted Instead of withdrawal, the petitioner would have been allowed to amend the suit. In support of his submissions, the learned counsel appearing for the petitioner relied on -(1) K. S. Bhoopathy Vs. Kokila, reported in AIR 2000 SCW 2194 and (2) Rajaram Jairam Raut Vs. Baliram Laxman Raut, reported in 2006 (2) Mh.L.J. 693. 4. As per Rule 1(3) Order 23 of the Civil Procedure Code, if sufficient ground is shown by the plaintiff to institute a fresh suit about the subject matter of the suit, then the Court may grant permission to withdraw with liberty to institute a fresh suit. In the present matter, the respondent- original plaintiff has not given any reason in his application dated 31st January, 2009. However, in the said application, the respondent/plaintiff has sought permission in writing to institute a new suit. While passing the order on the said application for withdrawal of suit, the learned Civil Judge, Junior Division has mentioned that the plaintiff has orally submitted that the present suit was for simplicitor injunction and the plaintiff wants to file a fresh suit for possession regarding the suit property. The learned Trial Judge, with reasoned order, has allowed the prayer for withdrawal with liberty to institute a fresh suit. 5. I have gone through the rulings relied by the learned Counsel appearing for the petitioner. On facts, the rulings of our High Court in the case of Rajaram Jairam Raut is distinguishable . In the other case of K. S. Bhoopathy Vs. Kokila, the Hon ble Supreme court has laid down the ratio ’ 3 that it is the duty of the Court to feel satisfied about the existence of “ proper grounds/reasons for granting permission to institute a fresh suit .” In that case, during the pendancy of the appeal, the appellant filed an application under Rule 1(3) Order 23 of the Civil procedure Code before the High Court of Madras and in the present case, the application was filed before the Trial Court and the learned Trial Judge has correctly dealt with the matter. I do not find any illegality in the order passed by the learned Civil Judge and hence it is maintained. 6. In the result, the petition stands dismissed in with no order as to costs. ( MRIDULA BHATKAR, J.) jpc/-