1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR LETTERS PATENT APPAL NO. 246/2009 IN WRIT PETITION NO. 422/2009 ( Raibai Vasantrao Dhakulkar . -: versus :- Smt. Manju Vithobaji Jambutkar and others ) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI AND F.M. REIS, JJ. DATED : OCTOBER 15, 2009. Heard Shri B.N. Mohta, learned Counsel for appellant, Shri N.A. Vyawahare, learned Counsel for respondent nos. 1 to 4. The order dated 23.10.2008 passed below Exh.67 allowing the appellant/plaintiff to withdraw Regular Civil Suit No. 240/2008, passed by the Civil Judge, Junior Division, Hingna is under challenge before this Court. Consequent orders have also been passed on Exh.1 disposing of the suit finally. These orders were assailed in Writ Petition under Articles 226 and 227 of the Constitution of India, before the learned Single Judge and that Writ Petition No. 422/2009 has been dismissed on 28.04.2009. Shri Mohta, learned counsel has pointed out that on 23.10.2008 when the impugned order came to be passed, the plaintiff had moved one application saying that she wanted to prosecute the suit further, and therefore, suit should not be disposed of. In view of this position, on last date of hearing we had proposed to dispose of the appeal 2 finally. Shri Vyawahare, learned counsel who appears for respondent nos. 1 to 4 has contended that the Writ Petition has been disposed of under Article 227 and therefore, letters patent appeal is not maintainable. He further contends that plaintiff has already disposed of the suit property in favour of some third person and therefore, she has no interest left in the suit. He contends that because of this loss of interest, plaintiff had expressly moved an application for disposal of the suit and infact that consent was also recorded by the trial Court on earlier date. It is apparent that, on the date 23.10.2008, when order disposing of the suit as withdrawn came to be passed, the plaintiff was not ready and willing to withdraw the suit. Hence, whatever may be the reason, the court could not have disposed of the suit as withdrawn. The court could have dismissed the suit for want of prosecution or could have passed other appropriate orders under Order 17. We therefore, find that the impugned order is un-sustainable. The suit came to be disposed of finally against the desire of plaintiff as withdrawn, and that order passed below Exh. 67 was assailed in Writ Petition. The Writ Petition was under Articles 226 and 227. The learned Single Judge has not indicated anywhere in the order that cognizance is being taken only under Article 227 of the Constitution of India. If cognizance was not possible under Article 226 of the Constitution of India, reasons therefor could have been indicated so as to enable the appellant to challenge those reasons in Letters Patent Appeal. In these circumstances, we are not in a position to accept the 3 arguments of learned counsel for the respondents that the learned Single Judge has taken cognizance only under Article 227 of the Constitution of India and therefore, letters patent appeal is not maintainable. Loss of interest in suit property by the plaintiff cannot be the reason to force the plaintiff to withdraw the suit. We have already observed about the course of action open to court in such matters. In view of this, the order dated 23.10.2008 and consequential order passed below Exh. 1 in Regular Civil Suit No. 240/2008 are without jurisdiction and unsustainable. The same are accordingly quashed and set aside. Regular Civil Suit No.240/2008 is restored back to the file of the Civil Judge, Junior Division Hingna. Parties are directed to appear before the said Court on 1.12.2009. At this stage, in view of joint request and with the consent of the parties, it is clarified that as the order dt. 23.10.2008 is quashed and set aside, the rider in clause [ii] in operative part of that order, that “the suit is closed as was finally adjudicate between the parties by judgment and decree dated 15.12.2005”, also goes as it stands quashed and set aside. With the result, Writ Petition No. 1197/2009 filed by the respondent nos. 1 to 4 before the learned Single Judge is rendered infructuous because petitioners therein have got relief which they wanted. Letters patent appeal is disposed of accordingly. No cost. JUDGE JUDGE Rgd.