1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.1651 OF 2009 IN SUIT NO. 748 OF 2008 Smt. Sudha alias Sushma Suresh Narwekar and Anr. ..Plaintiffs Vs. Dr.Caesar Manoel Fernandes (since deceased) Dr.Mrs.Iris C.Fernandes and Ors. ..Defendants .... Mr. Zal Andhyarujina along with Jay Bhatia for Plaintiffs Mr. Jaideep Mitra i/b Prem Gidvani for Defendants .... CORAM : S.C.DHARMADHIKARI, J. DATED : 8th December, 2009 P.C.: 1. At the request of the Plaintiffs, this Chamber Summons was placed under caption for withdrawal. However, Mr. Andhyarujina on instructions from the Plaintiffs, makes a statement that Plaintiffs desire to withdraw both Chamber Summons and the suit with liberty to file a fresh suit. He submits that even if amendments are granted that would necessitate making comprehensive changes in the averments and 2 would virtually mean substituting a new plaint. Therefore, the Plaintiffs desire to withdraw the suit with liberty to file a fresh suit. 2. Mr. Mitra on behalf of Defendants submits that the Plaintiffs may withdraw the suit, but this Court should not give them any liberty. He submits that even today all documents are not being produced by the Plaintiffs. Secondly, they have not satisfied the requirements in law so as to enable this Court to arrive at a conclusion that the liberty to institute a fresh suit, be granted. Thirdly, at the hearing of the Notice of Motion in this suit, an order was made by the Court which contains observations and the benefit of these observations and the order would be lost to the Defendants. 3. I do not see any merits in this objection inasmuch even if the Plaintiffs are allowed to withdraw the suit with liberty to file a fresh suit, nothing prevents the Defendants from pursuing their objections. Where the Notice of Motion, Chamber Summons or suit itself is withdrawn, the Defendants not precluded from highlighting the conduct of the Plaintiffs, the issue of jurisdiction and maintainability so also merits of the case. All their pleas are intact and if liberty is granted, it is not that this Court has expressed any opinion on the rival contentions. 4. In view of the aforesaid, suit is allowed to be withdrawn with liberty to file a fresh suit. All objections and contentions of both sides are kept open. Since the suit itself is withdrawn, Chamber Summons does not 3 survive and stands disposed of accordingly. 5. Mr. Andhyarujina appearing for the Plaintiffs states that the Plaintiffs would apply for withdrawal of appeal before the Division Bench of this Court within a period of one week from today. S.C.DHARMADHIKARI, J.