{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.6457 OF 2008 Ganpat Madhav Karpe and others PETITIONERS VERSUS Nivrutti Narayan Karpe and others RESPONDENTS ....... Mr.L.V.Sangit, Advocate for petitioners Mr.S.K.Shinde, Advocate for respondents No.1 to 3 ....... [CORAM : A.V.POTDAR, J.] DATE : 15 th June 2009 PER COURT: 1. By the present petition, filed under Articles 226 and 227 of the Constitution of India, the petitioners have challenged the order dated 25.07.2008 passed below Exhibit-92 by which an application moved by the petitioner for withdrawal of the suit with permission to file fresh suit on the same cause of action under Order 22 Rule 3 of Civil Procedure Code, came to be rejected. 2. Heard learned advocate for the petitioner followed by advocate for respondents. Considering the contents of application {2} Exhibit-92 it is clear that the suit is filed by the petitioners for simplicitor removal of alleged encroachment at the hands of the respondents / defendants on the basis of allegations made in the plaint. As against this, it is alleged in unnumbered paragraphs No. 2 and 3 of the application Exhibit-92 that there are certain irregularities committed at the time of formation of Guts under the Prevention of Fragmentation and Consolidation Act, and there is challenge to the procedure followed in that scheme by the concerned revenue/ survey authority. If it is so, and if the petitioners intend to join those survey / revenue authorities and the acts on their parts, then it cannot be said that the suit challenging their acts would be suit on the same cause of action. If the subsequent or the proposed suit on the different cause of action then the order passed by the learned court refusing to withdraw the suit with permission to file a fresh suit on the same cause of action cannot be said to be wrong or that any error is committed by the trial court in refusing the application. There is different between withdrawal of a suit and withdrawal of a suit with permission to file a fresh suit on the same cause of action. In the premise, no interference is required with the order passed below Exhibit-92 passed by the trial court with clarification that the petitioners are always entitled to file fresh suit for different cause of action. With this clarification, writ petition, which is devoid of any merits, is dismissed with no order as to costs. 3. It is hereby clarified that the petitioners are not {3} precluded from filing application for simplicitor withdrawal of suit before the trial court. [A.V.POTDAR, J.] drp/wp6457-08