1 64-wp2096-11 rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURSIDICTION WRIT PETITION NO. 2096 OF 2011 Freddy Noshir Bisni .. Petitioner V/s. Pilloo Dadabhoy Broacha & Ors. .. Respondents ..... Mr. Suraj Shah i/b. M/s. Divya Shah & Associates for the petitioner. Mr. R. M. Haridas for respondent Nos.1 to 3. ..... CORAM : A.S.OKA, J. DATE : NOVEMBER 28, 2011. P.C.: Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents. The respondents are the original plaintiffs and the petitioner is the original second defendant. Respondents filed a suit for eviction against the petitioner and the first defendant in respect of flat No. A/9 more particularly described in paragraph No.2 of the plaint. The suit was filed in the year 2004. An application for amendment of the plaint was made by the respondents for including Garage No.B-6 as a part of the suit premises. The learned trial Judge made the notice for amendment absolute. The Revision Application preferred by the petitioner against the said impugned order has been rejected. 2 64-wp2096-11 2. The learned counsel appearing for the respondents on instructions states that by setting aside the impugned orders, the respondents may be permitted to withdraw their application at Exhibit-104 with liberty to file a separate suit for possession in respect of Garage No.B-6. He states that there are separate rent receipts issued in respect of the suit premises and the Garage No.B-6 and therefore, a separate suit is maintainable. The learned counsel appearing for the petitioner submits that a separate suit will not be maintainable. However, it is not necessary to consider the said issue in the present petition in as much as even if the respondents file a separate suit, all contentions of both the parties on merits remain open. 3. Hence, I pass the following order: :: O R D E R :: i. The impugned Judgment and order dated 5th December, 2008 passed below Exhibit 104 is quashed and set aside. ii. The respondents are permitted to withdraw the application at Exhibit-104 with liberty to file a separate suit for eviction in respect of Garage No.B-6. 3 64-wp2096-11 iii. The issue whether the tenancy of Garage No.B-6 is separate or not is expressly kept open. iv. All contentions of the parties are kept open. v. The petition is partly allowed on the above terms with no order as to costs. (A.S.OKA, J.)