:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. APPEAL NO. 382 OF 2008 IN CHAMBER SUMMONS NO. 571 OF 2007 IN SUIT NO. 2149 OF 1986 M/s. Rizvi Builders ..Appellant (Org.Applicant) Vs. 1. Goswami Shri Hariraiji Krishnajivanji Maharaj and ors. ..Respondents (Org.Plff.Nos.2 to 4 & Org.Deft. Nos. 1 to 3) Ms. Rajani Iyer, Senior Advocate i/by Mr. R.R. Kalekar for appellant. Mr. Raju Subramaniam, Senior Advocate i/by Mr. A.G. Shah for respondent nos.2 to 4. CORAM: CORAM: CORAM: F.I. REBELLO & F.I. REBELLO & F.I. REBELLO & R.S. R.S. R.S. MOHITE, JJ. MOHITE, JJ. MOHITE, JJ. Date Date Date : December 16, 2008. : December 16, 2008. : December 16, 2008. P.C.: P.C.: P.C.: 1. The appellant herein was the original applicant who had taken out Chamber Summons No. 571 of 2007 in Suit No. 2149 of 1986. The respondent nos.1 to 4 were original plaintiffs and respondent nos. 5,6 and 7 were original defendant nos.1, 2 and 3. In the suit, there appeared to be three other defendants who have not been added as respondents in this appeal. :2: 2. During the pendency of the suit, the appellant herein moved an application that the appellant be substituted as plaintiff and the plaintiffs be transposed as defendant nos.7 to 10 in the suit. The other relief was to amend the plaint incorporating the name of the applicant as plaintiff and transferring the plaintiffs as defendant nos.7 to 10 in the suit and also consequential amendment, including relief of possession. . A learned Judge of this court by his order dated September 20, 2007, after considering the various contentions, including the submission made, based on Order XXII Rule 10 of C.P.C., found no merit in the same and consequently dismissed the said Chamber Summons. The court noted that appellant (applicant) by seeking substitution of itself as plaintiff and carrying out amendment to the plaint filed by the original plaintiffs, respondent nos.1 to 4 herein, wants relief of possession against respondent nos.1 to 4. The court held that on reading of Rule 10 of Order XXII of the said Code, such a relief cannot be granted as the applicant does not :3: want to prosecute the suit as it exists today which survives only against the defendant no.3a but wants a decree of possession to be passed against the original plaintiffs. . After this order was passed, it appears that the suit itself has been withdrawn by the plaintiffs. The submission of the learned counsel on behalf of the appellant is that though the suit has been withdrawn, the learned Judge has been pleased to permit withdrawal of the suit subject to the order that may be passed in the appeal. 3. In our opinion, once the plaintiffs have withdrawn the suit, nothing further would survive in this appeal as the plaintiffs are dominus litis. The only jurisdiction that the court had at the time of withdrawal of the suit is to grant leave or not to grant leave. Admittedly, no leave had been sought and consequently the plaintiffs could have withdrawn the suit. Order XXII Rule 10 is to merely permit substitution of the original plaintiff on account of subsequent events. The contention of the appellant herein is that they have acquired all the rights and :4: title of plaintiff no.1 and as such they ought to have been allowed to be substituted. The appeal has not been filed by the plaintiff no.1 challenging the withdrawal of the suit. . We are informed that a Motion has been taken out by the present appellant. If it is the contention of the appellant herein that the suit was withdrawn by playing fraud on the court and without the consent of the plaintiff no.1, it was for plaintiff no.1 to move the court but the plaintiff no.1 has not done so. In these circumstances, in our opinion, it is not proper at this stage to comment on the Motion taken out by the appellant before the trial court. It is for the trial court to pass such order which may be permissible in law. . At any rate, the appeal consequent to the withdrawal of the suit, is not maintainable. We may also mention that by dismissal of the Chamber Summons, the rights of the appellant, if any, are not defeated. It was always open to the appellant to file a proper suit amongst other against the original plaintiffs if it is aggrieved by any act on their part or has a :5: cause of action. 4. In the light of the above, in our opinion, this appeal is devoid of merit and consequently appeal is dismissed. In the circumstances of the case, there shall be no order as to costs. (R.S. Mohite,J.) (F.I. Rebello,J.)