1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE NAGPUR BENCH, NAGPUR WRIT PETITION NO. 2187/2008 (Suresh Kisan Tayade Vs. Principal, Sant Gadge Baba Niwasi Muk-Badhir Vidyalaya, Sawar & ors) Appeal District : Application No. of 200 Writ petition Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's orders. Mr. Mohta, Adv. for the petitioners. Mr. A.J. Thakkar,Adv. For R-2A, to 2D. CORAM : Smt. Vasanti A. Naik, J. DATED : 19 th NOVEMBER, 2008. By this petition, the petitioners impugn the order passed by the Ad hoc District Judge, Akot dismissing the application filed by the petitioners for withdrawal of the suit with liberty to file a fresh suit. The petitioners had filed a suit against the respondents for permanent injunction restraining the respondents from utilizing the amount received by the Society for any other purpose than to pay the salary to the petitioners and further to restrain the respondents from misappropriating the amount. The trial Court had dismissed the suit filed by the petitioners by the judgment dated 13/10/2001. The trial Court answered all the issues against the present petitioners to hold that the petitioners were not the employees of the School run by the 2 defendant no.2. The Court further held that the plaintiffs had failed to prove that the defendant nos. 2A to 2G were misutilizing the grants meant for paying the salary of the petitioners. The judgment passed by the trial Court on 13/10/2001 was challenged by the petitioners in first appeal. When the first appeal came up for hearing before the first appellate Court, the petitioners moved an application for withdrawal of the suit on the ground that there was a formal defect in framing the suit, seeking further liberty to file a fresh suit in respect of the subject matter of the suit. The application filed by the petitioners was strongly opposed by the management. By the impugned order dated 11/2/2008, the application filed by the petitioners was dismissed. The petitioners have impugned the order in the instant petition. No fault whatsoever can be found with the impugned order passed by the Additional District Judge, Akot, on 11/2/2008. The suit filed by the plaintiffs was dismissed on merits and all the issues were answered against the plaintiffs. It was also held by the trial Court that the plaintiffs had not proved that they were the employees in the School run by the defendant no.2. The Ad hoc District Judge, Akot, therefore, rightly held that the suit could not have been withdrawn by the 3 petitioner with liberty to file a fresh suit on the ground that there was a formal defect in it. The Court rightly held that the petitioners cannot avoid the adverse findings recorded by the trial Court against them by seeking permission to withdraw the suit with liberty to file a fresh suit. The Court relied on the reported decisions of the Hon'ble Supreme Court and this Court, to hold that the petitioners were not seeking permission to withdraw the suit and file a fresh suit as there was a formal defect in the framing of the suit. The Court rightly held that there was no formal defect in the framing of the suit and the main issue which went to the root of the matter was answered against the petitioners by the trial Court by the judgment dated 13/10/2001 which was challenged in appeal. For the reasons aforesaid, the writ petition is dismissed with no order as to costs. JUDGE RMP