1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 2544 OF 2009 (Purushottam Ganpatrao Mahajan vs. Smt. Sudha wd/o Wasudeorao Mahajan & Ors.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. JULY 01, 2010. Heard Shri Nemade, learned counsel for the petitioner – original defendant No.1, Shri Wagh, learned counsel for respondent No. 1 – original plaintiff and Shri Palshikar, learned counsel for respondent No. 7 – original defendant No. 7. On 17.02.2000, the trial Court dismissed the suit for partition and separate possession filed by defendant No. 1 against defendants No. 2, 3 & 4 therein for not taking proper steps to have them served. The application for setting aside that order was dismissed. The subsequent application for same purpose filed vide Exh. 101 also met same result. Thereafter defendants No. 2 & 3 voluntarily appeared and because of their appearance, the trial Court has set aside the dismissal of suit against them. The plaintiff then sought setting aside dismissal against defendant No. 4 also and sought issuance of notice of suit to that defendant. That application has been allowed on 16.02.2009. Shri Nemade, learned counsel contends that 2 because of dismissal of suit against defendants No. 2, 3 & 4, the petitioner acquired right to point out to trial Court as to how the suit as filed by Respondent No. 1 could not have been decreed in the absence of necessary parties. According to him, having failed successfully in getting that order set aside, the order dated 16.12.2009, particularly permitting the plaintiff to serve defendant No. 4 again and restoring suit as against her is unsustainable. He points out that if a requirement of law is not fulfilled, fresh suit at the instance of present respondent No. 1 is also not maintainable in such facts. His further contention is, the applications moved are barred by limitation as Article 122 of Limitation Act is squarely applicable. Shri Wagh, learned counsel as also Shri Palshikar, learned counsel states that as defendants No. 2, 3 & 4 could have filed a fresh suit for same purpose, order does not require any interference. It is apparent that defendants No. 2 and 3 have voluntarily appeared and therefore, they have no objection to restoration of suit as against them. Defendant No. 4 had not appeared and only notice was issued to her. Though she is party respondent before this Court, she has chosen not to appear. The right to raise objections as are available in law are, therefore, open to her. She can raise appropriate stand in relation to developments before the trial Court. The present petitioner, who is only defendant No. 1, in that suit, 3 cannot contend that other defendants cannot appear in the suit and participate in the matter. The fresh suit could have been filed by those defendants for partition and separate possession. Hence, I am not inclined to interfere in the matter. However, Respondent No. 4 (defendant No. 4) who is not appearing before this Court in the matter and to whom only notice has been issued, is left free to challenge the order before the trial Court. If such challenge is made, the trial Court shall consider the same uninfluenced by any observations made by this Court. Writ Petition is dismissed. No order as to costs. JUDGE *GS.