1 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 10536 OF 2009 Gajanan Chandrakant Upadhye .. Petitioner V/s Vasudeo Krishnaji Upadhye & Ors. .. Respondents Ms. Gauri Godse for the petitioner. Mr. P.S. Dani for respondent no.1. CORAM : D.G. KARNIK, J. DATE : 30TH JUNE 2010 P.C. : 1. Heard. 2. By this petition, the petitioner initially had challenged two orders, viz. (i) order rejecting the petitioner’s application under Order 23 Rule 1 of the Code of Civil Procedure (for short “the Code”) for permission to withdraw the suit with liberty to file a fresh suit, and (ii) order rejecting the petitioner’s application for amendment. On the previous date, the petitioner had made a statement that the petitioner does not press the challenge to the order rejecting the amendment application and that has been recorded by the Court in its order dated 10 December 2009. Therefore, the only question that requires to be considered is whether the Court below erred in rejecting the petitioners’ application under Order 23 Rule 1 of the Code. 2 3. The suit filed by the petitioner was dismissed by the Trial Court and the application for withdrawal of the suit with liberty to file a fresh suit was made in an appeal filed by the petitioners against the order of the trial court dismissing the suit. 4. In R. Rathinavel Chettiar v. V. Sivaraman, (1999) 4 SCC 89, the Supreme Court has held that the application for withdrawal of the suit under Order 23 Rule 1 of the Code cannot be allowed at the appellate stage as a matter of course especially when some vested rights might have been created in view of the decision in the suit. In the present case, the suit was filed for partition. Part of the property has already been transferred and third party rights have been created. Permitting withdrawal of the suit and granting permission to the plaintiff to file a fresh suit including right to challenge the alienation made in favour of a third party would affect the rights of the third party. Therefore, such an application cannot be allowed. Even otherwise, learned counsel for the petitioner was unable to point out any technical defect on account of which the suit was likely to fail. The suit has been dismissed on merits and not on a technical defect. In the circumstances, there is no merit in the writ petition which is hereby rejected summarily. (D.G. KARNIK, J.)