1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.4407 OF 2009 Vishwanath Khandu Jadhav & Ors. ...Petitioners vs. Jadhav Motiram Punjaji & Ors. ...Respondents Mr.Tushar Sonawane for the petitioners Mr.S.K.Shinde for respondent no.12 CORAM :A.S.OKA,J. DATE : JANUARY 12, 2010 P.C. 1 The learned counsel for the Petitioners seeks permission to withdraw the application at Exh.63 with liberty to file a fresh application. He submitted that as the trial has commenced, the petitioners will have to make out a case as per the proviso to Rule 17 of Order VI of the Code of Civil Procedure,1908. He submitted that in the application, the Advocate for the petitioner has not incorporated any ground for bringing the case within the proviso. Hence, he is seeking liberty to file a fresh application. The learned counsel for the respondent no.12 opposes the said prayer. 2 The petitioners have accepted that considering the stage of the suit, the application will be governed by constraints of proviso Rule 17 of Order VI of the said Code. An opportunity deserves to be granted to the petitioners to make an application for amendment. 3 Hence, I pass the following order : i) Application at Exh.63 is dismissed as withdrawn with 2 liberty as prayed. Hence, the impugned order has become inoperative. ii)If a fresh application is made by the petitioners, the same will be decided by the trial Court on its own merits. It will be open for the respondents to oppose the said application on all permissible grounds. iii)Writ Petition is disposed of in above terms. JUDGE