1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7499 OF 2008 Mr.Chandrakant Tukaram Bharekar & Anr. ..Petitioners. V/s. Dadu Sitaram Nanavare & Ors. ..Respondents. Mr.Y.A.Sakhare i/b. YKS Legal for petitoner. Mr.Mandar Limaye for Repondent Nos. 1 to 6. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : FEBRUARY 4, 2009. DATE : FEBRUARY 4, 2009. DATE : FEBRUARY 4, 2009. P.C. : P.C. : P.C. : 1. Heard Counsel for the parties. 2. Rule. Rule made returnable forthwith by consent. Mr.Limaye waives notice for respondent Nos. 1 to 6. 3. As short question is involved, Petition is taken up for final hearing forthwith by consent. 4. This Petition under Article 227 of the Constitution of India takes exception to the Judgment and Order passed by the Joint Civil Judge, S.D & 5th S.M.C.Court, Pune dated 18th March, 2008 in Special Civil Suit No.1344 of 2005. The said order is passed 2 on the application preferred by the Petitioners/Plaintiffs for permission to withdraw the present suit filed by him with permission to file a fresh suit, if the Plaintiffs wish to do so after the Second Appeal bearing Stamp No.21215 of 2006 is finally decided by the High Court. The application has been rejected on the reasoning that no satisfactory reason has been made out to grant application preferred by the Plaintiffs as unconditional withdrawal cannot be granted. The Lower Court proceeds on the assumption that it is only in a case of formal defects in the suit, such indulgence can be shown. Order 23(1)(3)(b) provides that when there are sufficient grounds for allowing the Plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, such indulgence can be shown. 5. The argument of the Respondents is that the Petitioners/Plaintiffs have no concern with the proceedings pending before this Court being Second Appeal, which is referred to in this Application. 6. The Second Appeal was filed by the Respondent, in which the Petitioners/Plaintiffs are not party. However, it is not in dispute that the 3 said suit from which the Second Appeal arises pertains to the same suit property. If it is so, it is incomprehensible as to why the request of the Plaintiffs/Petitioner now made cannot be termed as sufficient ground. The request of the Plaintiffs is that depending on the outcome of the second appeal, the Plaintiffs may be permitted to pursue fresh suit in respect of the suit property for appropriate relief consistent with their rights in the suit property, if any. Thus understood, the order under challenge cannot be sustained. The same is set aside. Instead, the Application preferred by the Petitioners/Plaintiffs is granted. 7. In other words, the Plaintiffs are permitted to withdraw their suit with liberty to file fresh suit after decision in Second Appeal pending before this Court being Second Appeal No.355 of 2008(Stamp No.21215/2006). Ordered accordingly. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)