:1: 4868.09-wp bgp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4868 OF 2009 Shashi Leekha s/o. Sh.Subhash Chander Leekha ..Petitioner Vs. Shiela Shashi Leekha ..Respondent Mr.Uday P. Warunjikar for petitioner. Mr.Vikram Deshmukh i/b. Mrunalini Deshmukh for respondent. CORAM : V.C.DAGA,J. DATE : FEBRUARY 10, 2011 P.C. (In Chamber) Heard. Perused petition. 2. This petition was filed by the petitioner to challenge the order dated 25th March, 2009 passed by the Family Court, Mumbai below Exhibit 15, in Interim Application No.343 of 2008 in Petition No.A-2052 of 2008. 3. During the pendency of this petition, an objection is raised to the maintainability of this petition relying on the judgment of the Apex Court in the case of Liverpool & London S.P. & I Association Ltd. vs. M.V.Sea Success I and Another (2004) 9 SCC 512, wherein the Apex Court in paragraph Nos.128 to 132, has observed as under: 128. As by reason of an order passed under Order 7, Rule 11 of the Code of Civil Procedure, the rights conferred upon the parties are determined one way or the other, stricto sensu it would not be an interlocutory order but having regard to its traits and trappings would be a preliminary judgment. :2: 4868.09-wp 129. It is true that in Shah Babulal Khimji (supra) it is stated that an order rejecting the plaint would be appealable but does not expressly state that an order refusing to reject would not be appealable. Therein this Court gave 15 instances where an order would be appealable which are only illustrative in nature. 130. Such observations have to be understood having regard to the concept of finality which are of three types: (1) a final judgment (2) a preliminary judgment and (3) intermediary or interlocutory judgment. 131. In our opinion the order refusing to reject the plaint falls in the category of a preliminary judgment and is covered by the second category carved out by this Court. 132. It is trite that a party should not be unnecessarily harassed in a suit. An order refusing to reject a plaint will finally determine his right in terms of Order 7 Rule 11 of the Code of Civil Procedure. 4. The learned Counsel for the respondent also urged that above alternate remedy by way of appeal is very much available to the petitioner and that he should be relegated to the appellate remedy. Reliance is placed on the judgment of the Apex Court in the case of Seth Chand Ratan Vs. Pandit Durga Prasad (D) by Lrs. And Ors. (2003) 5 SCC 399 and Sadhana Lodh Vs. National Insurance Co. Ltd. & Anr. (2003) 3 SCC 524 in support of the contention raised. 5. The learned Counsel appearing for the petitioner on the above premise prayed for conversion of this petition into an appeal. In our opinion, instead of granting permission to convert petition into appeal, it would be in the interest of justice to permit the petitioner to withdraw this petition with liberty to file an appeal along with an application under Section 5 read with Section 14 of the Limitation Act to seek condonation of delay and exclusion of time spent in the Writ Court. :3: 4868.09-wp 6. It is needless to mention that till such time the appeal is filed, it would always be open for the petitioner to approach the Family Court and to bring this fact to the notice of the Family Court so as to seek adjournment for a reasonable period. We have no manner of doubt that the Family Court shall consider such request if made. 7. In view of this order, no further orders on interim prayers are necessary. All rival contentions are kept open. 8. Since the Writ Petition is being withdrawn, the petitioner is permitted to withdraw certified copies of the documents filed in the Writ Petition so as to file them along with appeal, however, subject to filing of photo copies thereof on record. The Writ Petition is accordingly stands disposed of as withdrawn in terms of this order with no order as to costs. (V .C.DAGA,J.)