1 wp6678-11.sxw jpc/- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6678 OF 2010 Chintamani P. Sawant and others .. Petitioners Versus Santosh M. Potdar and others .. Respondents Mr. Nitin Mulye for the Petitioner CORAM: R. M. BORDE, J. DATED : 24th August, 2011 P. C. 1. Rule. Rule made returnable forthwith. 2. Heard the learned counsel appearing for the petitioners. 3. None appears for the respondents, though served. Respondent Nos.1 and 4 to 6 are served by the Court notices, whereas, Respondent Nos. 2 and 3 are served by alternate mode of service i.e. publication of notice in the newspaper. 4. An application tendered by the petitioners-original plaintiffs seeking leave of the court to withdraw the Suit with liberty to file a fresh was considered by the trial court. The 2 wp6678-11.sxw application tendered by the plaintiff under Order 23 Rule 1 of the Code of Civil Procedure came to be rejected and the said order of rejection of application is subjected to challenge in this petition. 5. I have heard the arguments advanced by the counsel for the petitioner. 6. The petitioners have initially instituted a suit bearing RCS No.18/2007, claiming decree of perpetual injunction against the defendant no.6-brother of the plaintiff- the purchaser of the ancestral property. After presentation of the suit, it was realised that it is necessary for the plaintiffs to claim partition in respect of ancestral property. It is noted in the application tendered by the plaintiffs that the record has been created in respect of the partitioning the property amongst four sons of Pandurang Sawant and taking disadvantage of the erroneous revenue record, the defendant no.6 has alienated some portion of the property. The plaintiffs, therefore, seek leave of the Court to withdraw the suit on account of the formal defect appearing in the suit and also liberty to present a fresh suit founded on same 3 wp6678-11.sxw cause of action. The application however, has been turned down by the trial court for the reasons that the plaintiffs have failed to demonstrate the formal defect appearing in the suit. 7. I have perused the application and the copy of the plaint and application tendered by the plaintiffs- petitioners herein and the impugned order. Order 3 Rule 1, Sub Rule (3) recites as under: Rule 1. Withdrawal of suit or abandonment of part of claim- (3) Where the court is satisfied,-- (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of the claim. 8. In the instant case, on perusal of the plaint as well as the application tendered by the plaintiffs, I am convinced that the plaintiffs have demonstrated sufficient ground for exercising discretion in their favour. There shall be no reason 4 wp6678-11.sxw to refuse permission as requested by the plaintiffs in respect of institution of a fresh suit founded on the same cause of action. 9. Writ petition is therefore deserves to be allowed and the same is accordingly allowed. 10. The order passed by the Civil Judge, Junior Division, Mangaon below Exh.51 in Regular Civil Suit No. 18 of 2007 dated 12th August, 2010 is quashed and set aside and the application tendered by the plaintiff at Exh.51 shall be deemed to have been allowed. 11. Rule is accordingly made absolute. 12. In the facts and circumstances of this case, there shall be no order as to costs. ( R. M. BORDE, J.)