1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR WRIT PETITION NO. 5585/2011 (SHANTABAI G. SAWARKAR VERSUS SUKHDEO S. TAYDE (DEAD) THROUGH HIS L.R.S SMT. NALINI S. TAYDE & OTHERS) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri S.K. Pardhy, counsel for the petitioners. CORAM : SMT. VASANTI A. NAIK, J. DATE : NOVEMBER 15 , 2011 . By this petition, the petitioner challenges the order passed by the first appellate Court on 10.10.2011 rejecting an application filed by the petitioner for permission to withdraw the suit with liberty to file a fresh suit on the same cause of action. The petitioner is the original plaintiff. A suit was filed by the plaintiff against the respondent-defendant for a declaration that the plaintiff had a right of way as an easement by prescription. According to the plaintiff, she was using the disputed road for a period of more than twenty years and, hence, had acquired a right of way by prescription. The defendant had denied the claim of the plaintiff and had also denied that the plaintiff had acquired a right of way by easement of prescription. The trial Court framed the issues and after considering the evidence tendered by the parties on record by the judgment dated 26.08.2008, dismissed the suit filed by the plaintiff-petitioner and held that the plaintiff had failed to 2 prove that she was approaching her property through the way for the past more than twenty years. The petitioner preferred an appeal against the judgment passed by the trial Court. In the appeal filed by the petitioner, the petitioner filed an application under Order XXIII Rule 1 of the Code of Civil Procedure for withdrawal of the suit and for liberty to institute a fresh suit in respect of the same cause of action. The petitioner pleaded that there was a formal defect in the suit as though the petitioner wanted to plead that the petitioner had acquired a right of way by means of a grant, it was mistakenly pleaded that the petitioner had acquired a right of way by prescription. The application was strongly opposed by the defendants/respondents. The respondents stated in the reply that there was no formal defect or inherent defect in the suit and after the trial Court decided the suit on merits, the Court may not grant liberty to the plaintiff to withdraw the suit at the belated stage to file a suit on same fresh cause of action. The first appellate Court rejected the application filed by the plaintiff. The order passed by the first appellate Court is extremely just and proper. The first appellate Court rightly held that there was no formal defect in the suit filed by the plaintiff. When the plaintiff-defendant had tendered the evidence in the suit on the basis of the pleadings and had failed in the suit she could not have filed an application for permission to withdraw the suit with liberty to file a fresh suit as the suit had not failed by reason of some formal defect but, had failed in view of the fact that the plaintiff had failed to prove her case of having a right of way by easement of prescription. The first appellate Court rightly held that the 3 trial Court could not have granted liberty to the petitioner under Sub-Rule 3 of Rule 1 of Order XXIII of the Code of Civil Procedure. Since the order passed by the first appellate Court is just and proper, the same calls for no interference in exercise of the writ jurisdiction. The writ petition fails and is dismissed with no order as to costs. JUDGE APTE