1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.465 OF 2008 M/s.Mahashakti Traders Karad .. Petitioner Versus M/s.Chamunda Steel Centre .. Respondent Mr.G.S.Godbole for petitioner Mr.P.R.Arjunwadkar with Ms.P.U.Badadare for respondent Nos. 1 and 2. CORAM : S.C.DHARMADHIKARI, J. DATE : 21th February 2008 P.C. . After this matter was heard for some time Mr.Godbole appearing for petitioner who is original plaintiff in Special Civil Suit No.22 of 2 2006 makes a statement on instructions that the original plaintiff would apply to the trial court within 10 days from today for withdrawal of the special civil suit with liberty to file a fresh suit. To enable the petitioner original plaintiff to do so, he prays for appropriate protection so that he does not lose his valuable right to challenge the impugned order. Mr.Godbole states that as at present advised the plaintiff does not desire to challenge the impugned order but prays for liberty to do so at a later stage. 2. Mr.Arjunwadkar appearing for original defendant submits that while recording the statement of Mr.Godbole, this Court should not observe one way or the other as to whether the petitioner can withdraw the suit with liberty to file fresh suit and that aspect can be left to the consideration of the trial court. Equally, Mr.Arjunwadkar contends that the petitioner 3 cannot be allowed to have two rounds and while applying for withdrawal of the suit and taking advantage in that behalf, later on he should not turn around and challenge the impugned order as that would prejudice the original defendant clearly. 3. At this stage, considering the instructions that are given to Mr.Godbole, following order would meet the ends of justice. (a) Petitioner to apply for withdrawal of the suit bearing Special Civil Suit No.22 of 2006 within ten days from today to the trial court and the learned Civil Judge, Senior Division, Karad should consider that request and pass appropriate orders thereon in accordance with law, after hearing both sides. 4 (b) Needless to state that the petitioner is free to urge that the withdrawal will be with liberty to file fresh suit and while applying for that relief, original defendant - respondent herein will be heard. (c) If the petitioner applies as above, then, till the orders are passed on the application for withdrawal, all further proceedings in the Special Civil Suit shall remain stayed; (d) If the petitioner does not apply for withdrawal as stated above, then, the impugned order stand confirmed and this petition to then stands dismissed as not pressed without any liberty to the petitioner to challenge the impugned orders in this petition at a later stage; 5 (e) However, if the application for withdrawal does not succeed, then, while challenging the orders passed thereon, it would be open for the petitioners to also urge that the orders impugned in this petition be quashed and set aside and that be permitted to be done either by filing separate petition or in a single petition, subject to compliance with the prevalent rules on the appellate side; (f) Needless therefore to clarify that if the petitioner succeeds in his application before the trial court so also gets liberty to file fresh suit, then, such suit must be tried on its own merits and without being influenced by any earlier orders in the subject suit; (g) All contentions in that behalf of both sides are kept open. In the light 6 of the instructions Mr.Godbole states that the petitioner does not press this petition with liberty reserved to him as above; (h) If the application is preferred as above for withdrawal with liberty within the period stipulated above, then, the trial court to decide the same as expeditiously as possible and within a period of four weeks from the date of the application. All concerned to act on an authenticated copy of this order. Petition disposed of with the aforesaid directions. (S.C.Dharmadhikari, J)