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Bombay High CourtWP/385/2019disposed offdismissed for default

Saleemabe Milal Shaikh v. Madeenabee Bashir Khoje (Shaikh) And ORS

2019-10-14Hon'Ble Shri Justice Ravindra V. Ghuge3 pages

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD 4 WRIT PETITION NO.385 OF 2019 SALEEMABE MILAL SHAIKH

VERSUS

MADEENABEE BASHIR KHOJE (SHAIKH) AND OTHER ...

Advocate for Petitioner : Mr. R. P. Adgaonkar Advocate for Respondent Nos.2 to 5 : Mr. G. L. Deshpande ...

CORAM : RAVINDRA V. GHUGE, J.

DATED : 14th OCTOBER, 2019.

...

PER COURT :

1.

This matter was heard at length on 11.10.2019 and again today.

2.

I have considered the strenuous submissions of the petitioner, who is the original plaintif. He is aggrieved by the impugned order dated 17.11.2018, by which the trial Court has rejected application Exhibit-81 fled by him seeking leave to withdraw RCS No. 173 of 2013 and fle a fresh suit.

3.

Considering the order that I intend to pass, I am not required to advert to the entire submissions of the

litigating sides. Sufce it to say that after the entire oral evidence was recorded in the suit, the plaintif who belongs to the Mohammedan religion and is a lady litigant, consulted another advocate and the other advocate advised her to withdraw the suit and fle a fresh suit.

4.

I fnd from the impugned order that the trial Court has noticed that there are no such circumstances by which the ingredients under Order 23 Rule-1(2)and (3) of the Code of Civil Procedure can be said to have been satisfed for permitting the withdrawal of the plaint. 5.

The learned advocate for the defendants submits that the impugned order indicates that though there are no sufcient grounds for withdrawal of the suit with liberty to prefer a fresh suit, the trial Court has made an observation that if there are any formal defects or circumstances by which an amendment could be sought, the said option could be available to the plaintif. 6.

Considering the above, this petition is disposed of.

7.

In the event, the petitioner moves the trial Court with an application for amendment, on or before 11.11.2019, the trial Court would consider the said application, after hearing all the parties, on its own merits and without being infuenced by any observations made by this Court in this order.

(RAVINDRA V. GHUGE, J.) vsm/-