1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION NO.3543 OF 2009 Ravindra Ramchandra Shewte & Anr. .. Petitioners Versus Hemlata D. Karande & Ors. .. Respondents Mr.S.N.Chandrachood for the petitioners. Ms.Lalita Panchakshari for the respondents. CORAM : A.S.OKA, J. DATE : 17th August 2009. P.C.: . Rule. The learned advocate for respondent waives service. Taken up for hearing immediately. 2. The petitioners are the original plaintiffs and the respondents are the original defendants. The petitioners filed a suit simplicitor for injunction. During the pendency of the suit an application was made by the petitioners for amendment of the plaint for incorporating a prayer for passing a decree for possession. The said application was rejected. Thereafter an application was filed by the petitioners at 2 Exhibit 70. The said application was filed under sub-rule 3 of Rule 1 of Order XXIII of the Code of Civil Procedure, 1908 seeking permission of the trial Court to withdraw the suit with liberty to institute a fresh suit in respect of subject matter of the suit. By the order impugned, the said application has been rejected by the trial Court. 3. The learned trial Judge has observed that the petitioners had knowledge at the time of institution of the suit that the respondents have constructed a temporary shed on the suit property. The learned counsel appearing for the petitioners submitted that there was no reason for the trial Court to deny the relief as even if permission is granted to the petitioners to file a fresh suit, the respondents will have a right to contest the said suit on all permissible grounds. The learned counsel appearing for the respondents supported the impugned order by pointing out that the petitioners are not concerned with the property in possession of the respondents and the petitioners have no cause of 3 action against the respondents. 4. I have given careful consideration to the submissions. The suit filed by the petitioner is simplicitor for perpetual injunction which proceeds on the footing that the petitioners are in possession of the suit property. In the application at Exhibit 70, the petitioners have come out with a case that the respondents had carried out construction of a temporary shed on the suit property. It was contended that the petitioners will have to claim relief of removal of encroachment allegedly made by the respondents and therefore leave of the Court was sought to withdraw the suit with liberty to institute a fresh suit. 5. As stated earlier, the suit filed by the petitioners proceeds on the footing that they are in possession. The petitioners desire to file a suit for removal of encroachment. Earlier an application was made by the petitioners for amending the plaint for incorporating relief of decree of possession. The said application has been rejected by the trial Court. Therefore, in 4 the facts of the case there were sufficient grounds contemplated by clause (b) of sub-rule 3 of Rule 1 of Order XXII of the said Code for granting relief in favour of the petitioners. It is true that the application was made by the petitioners at a stage when evidence was partly recorded. But relief could not have been denied to the petitioner, but the trial Court could have awarded costs to the respondents. 6. Hence, I pass the following order: : O R D E R : (a) The impugned order dated 20th February 2009 is quashed and set aside. (b) The application made by the petitioners at Exhibit 70 is allowed and the petitioners are permitted to withdraw the suit with liberty to institute a fresh suit for the subject matter of the said suit. (c) The petitioners shall pay costs of Rs. 7,500/- to the respondents. Payment of costs will be a condition precedent. (d) The amount of costs shall be paid or shall be deposited with the trial Court 5 within a period of eight weeks from today. (e) It is made clear that all contentions of the respondents in the suit proposed to be filed by the petitioners are expressly kept open. (f) Rule is made absolute in above terms. (A.S.OKA,J)