Lsp IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT PETITION NO. 6967 of 2006 Khanum Sultan Nazarian & ors. ...Petitioner V/s. Nasima Z. Merchant & ors. ...Respondents Mr. P.S.Dani for the petitioner. Mr. B.R.Zaveri for respondent no.2. CORAM CORAM CORAM : A.M.KHANWILKAR,J. : A.M.KHANWILKAR,J. : A.M.KHANWILKAR,J. DATED DATED DATED : 18TH FEBRUARY, 2009 : 18TH FEBRUARY, 2009 : 18TH FEBRUARY, 2009 P.C. . Heard Counsel for the parties. 2. The conclusion reached by the Court below will have to be upheld on the reasoning that the plaintiffs have recognised the fact in the reply affidavit (dated February 2005) filed before the Lower Court that the proposed defendant no.3 had nothing to do with the right, title and interest of defendant no.2; whereas defendant no.2 was in lawful use, occupation and possession of the suit premises. Inspite of that the plaintiffs by way of proposed amendment are seeking relief of possession only against defendant no.3. The suit originally filed against defendant no.1 and in particular defendant no.2 is only a declaratory suit. 3. Taking any view of the matter the 2 petitioners-plaintiffs cannot be permitted to amend the plaint so as to ask relief only against defendant no.3 which is the proposed amendment suggested in the Interim Notice No. 113/2005. 4. Having realised this position, Counsel for the petitioners states on instructions that in that case the petitioners may be permitted to withdraw the Interim Notice No. 113/2005 with liberty to take out further interim Notice asking for appropriate reliefs as may be advised which can be considered on its own merits. Counsel for respondent nos. 2(a) & 2(b) has no objection in this behalf provided all questions in the said proceedings are left open to be decided on its own merits. 5. Accordingly, petitioners are allowed to withdraw Interim Notice No. 113/2005 and consequently, the present petition with liberty as prayed for on the above terms. [A.M.KHANWILKAR,J.] [A.M.KHANWILKAR,J.] [A.M.KHANWILKAR,J.]