1 ao173 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION APPEAL FROM ORDER NO.173 OF 2009 Shree Rawji Dhanji Shah & Ors. ...Appellants vs. Rahashree Shelters Pvt.Ltd. & Ors. ...Respondents None for the appellants Mr.Nitin Mulye for the respondent no.1 CORAM : A.S.OKA,J. DATE : FEBRUARY 21,2011 P.C.: 1 None appears for the appellants. Heard learned counsel for the first respondent. 2 The first respondent is the original plaintiff and the appellants are the defendant nos.1 to 7. By the order impugned dated 7th January 2009, an application made by the appellants at Exh.53 in the suit filed by the first respondent has been rejected. 3 In the application at Exh.53, the appellants relied upon the averments made in paragraph 26 of the plaint. According to the case of the appellants, averments made in paragraph 26 of the plaint constitute an undertaking of the first respondent to withdraw the Arbitration Petition no.79 of 2008. In the said application at Exh. 53 a prayer was made for taking action against the first respondent under Rule 11 of Order XXXIX of the Code of Civil Procedure,1908 on the ground that the first respondent has committed breach of the said undertaking incorporated in paragraph 26 of the plaint. By the impugned order, the said application has been rejected by holding that Rule 11 of Order XXXIX of the said Code is 2 ao173 not attracted. 4 The learned counsel for the first respondent has tendered across the bar a photo copy of the application at Exh.57 as well as the order dated 5th September 2009 passed by the trial Court on the said application. The copies are taken on record and marked `X (collectively) for identification. It appears that the application for amendment of the plaint was made by the first respondent at Exh.57 in which a prayer was made for grant of permission to delete paragraph 26 of the plaint. Another application was made at Exh.77 for correcting typographical mistake in the date set out in the plaint. By order dated 5 th September 2009, both the applications have been allowed by the trial Court. As a result the first respondent has been permitted to delete paragraph 26 of the plaint. 5 The relief claimed by the appellants in their application at Exh.53 was on the basis that the statements made by the first respondent in paragraph 26 of the plaint constitute undertaking. Now, by the subsequent order, the trial Court has permitted the first respondent to delete the said paragraph 26 of the plaint. In view of this position, prayer made at Exh.53 will not survive. Apart from all this, power of the Court under Rule 11 of Order XXXIX is discretionary. In view of the fact that subsequently the first respondent has been permitted to delete paragraph 26 from the plaint, now no interference can be made with the impugned order. Appeal is accordingly dismissed. 6 All contentions of the parties on merits of the pending proceedings are kept open. JUDGE