SOPAN KAMAJI GAWALI Vs. GAYABAI

JUDGEMENT

(1.) HEARD the learned Advocates for the respective sides at length. This petition was admitted by order dated 04/08/2009. The issue is as regards permission having been granted by the Trial Court under Or.XXIII R.1(3) of the CPC, 1908, by passing the impugned order below Exh.28 in RCS No.311/2008. The respondent / original plaintiff was allowed to withdraw the suit with liberty to file a fresh suit on the same cause of action.

(2.) RCS No.311/2008 was filed for partition, separate possession and declaration. The petitioner/defendant is the husband of respondent / original plaintiff. Notice was issued in the matter and the petitioner appeared pursuant to the same. Before the petitioner defendant could file his written statement in the matter, the respondent preferred an application below Exh.28 stating therein that her previous Advocate had not filed certain documents and had also failed to set out certain averments in relation to the said documents in the plaint. It was also contended that the documents pertain to a Sale Deed by which the petitioner / defendant had created third party interest causing serious prejudice to the plaintiff.

(3.) THE petitioner herein had opposed the said application by filing its reply on 25/07/2008. It was specifically canvassed that instead of withdrawing the suit, the plaintiff could produce the documents which have been left out and could have impleaded the third party namely Shaikh Asif Shaikh Yusuf by invoking Or.1 R.10 of The C.P.C. The petitioner further averred that the relief of declaration pursuant to the said aspects could be sought by amendment and the suit did not suffer from any formal defect.