1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.175 OF 2009 Smt. Sitabai @ Venubai Barku Patil .....Petitioner Versus Smt. Rakhmabai Vithu Patil & Ors. .....Respondents Mr. Ajit Kenjale for the Petitioner. Mrs. Teja Katdare for Respondent No.6. CORAM : R. V. MORE, J. DATED : 13th JULY, 2009. P.C.: Heard Mr. Kenjale, learned Counsel for the Petitioner and Ms. Katdare for Respondent No.6. None appears for the Respondent Nos. 1 to 5, though served. 2. The Petitioner is the original plaintiff. She filed Regular Civil Suit No.33 of 2003 for declaration and injunction against Respondent Nos. 1 to 5. The Respondent No. 6 was subsequently added. The Respondent No.6 has also filed counter claim. 3. The Petitioner by an application at exhibit “62” filed pursis in the Trial Court for leave to withdraw the suit unconditionally. The Respondent Nos. 1 to 5 has given no objection for withdrawal of the suit. However, the Respondent No.6 opposed the same on the ground that his counter claim is pending. The learned Trial Judge by the Order impugned in this Revision, rejected the Petitioner’s pursis at exhibit “62”. It is a settled principal that if a suit is dismissed or withdrawn, the counter claim will survive and it is to be treated as a suit. Therefore, pendency of the counter claim in Regular Civil Suit No.33 of 2003 is no ground to refuse permission to the Petitioner/Org.Plaintiff to withdraw the said suit. The learned Trial Judge, in my view, committed an error apparent on face of the record. The impugned order is accordingly, quashed and set aside. 2 4. The Application of the Petitioner at Exhibit “62” is allowed. The Petitioner is granted leave to withdraw the Regular Civil Suit No.33 of 2003. 5. Needless to mention that the counter claim of the Respondent No.6 should be treated as a suit and be disposed of in accordance with the law. Sd/ (R. V. MORE, J.)