Final Order 1

Order Details: Other
Pdf Text: Suit no. 446-19 1
MHCC010016462019 Presented on : 12-02-2019
Registered on : 21-02-2019
Decided on : 29-08-2026
Duration : 7 y 6 m 8 d
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
S.C. SUIT NO. 446 of 2019
CNR No. MHCC010016462019
Akil Iqbal Shaikh and Anr. .. Plaintiffs
Vs.
Sarfaraz Hussain Shaikh and Anr. .. Defendants
Appearances :-
Ld. Adv. Shifa Farooqui for the Plaintiff.
Ld. Adv. Faisal Vora for defendant No.2
CORAM: HIS HONOUR JUDGE
S.M. BUKKE
COURT ROOM NO.03
DATE: 29/08/2026
O R D E R
(Dictated and Pronounced in open Court)
1.  The plaintiff has filed application Exh. 4 seeking
withdrawal of the present suit with liberty to institute a fresh suit. The
ground urged is that the plaint as drafted by his previous advocate
contained glaring factual mistakes, contrary to the instructions of the
plaintiff, and therefore no effective relief could be granted. On engaging
another advocate, the plaintiff realized that the plaint was defective and
improper, hence the present application.
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Suit no. 446-19 2
2. Defendant No. 2 has strongly resisted the application,
contending that the plaintiff seeks relief against him as a trespasser of
the suit premises and for possession and mesne profits. It is urged that
defendant No. 2 has already taken out a notice of motion under Order
VII Rule 11 CPC for rejection of plaint after five years. The defendant
submits that the plaintiff is estopped from withdrawing the suit with
liberty to file afresh, as the plaintiff’s own acts and omissions have
compelled the defendant to attend Court for five years in frivolous
litigation. It is prayed that Exh. 4 be rejected with costs.
3. Heard. Perused.
4. Under Order XXIII Rule 1 CPC, the plaintiff may withdraw
the suit at any time after its institution. Under Rule 1(3), liberty to
institute a fresh suit in respect of the same subject matter can be
granted only if the Court is satisfied that the suit must fail by reason of
some formal defect or that there are sufficient grounds for allowing
withdrawal with liberty.
5. Needless to say that defendant is entitled to object;
however, except pointing to delay, no substantive ground has been
brought on record to reject the application. On perusal of the plaint, it
appears that the pleadings are scanty, and do not properly set out the
case as per the plaintiff’s instructions. This constitutes a formal defect
within the meaning of Order XXIII Rule 1(3) CPC.
6. On perusal of record it appears that plaintiff has instituted
suit for eviction and other consequential reliefs. While drafting plaint
Ld. Advocate has not properly drafted it Litigant should not suffer for
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Suit no. 446-19 3
the mistake of his advocate. The Court is satisfied that the plaint suffers
from formal defects and that the plaintiff has demonstrated sufficient
cause for withdrawal with liberty to file a fresh suit. The objections
raised by defendant No. 2 do not outweigh the plaintiff’s right to pursue
his claim properly pleaded.
7. As stated supra by the plaintiff this court is satisfied that
there are some formal defects. Therefore plaintiff has moved application
Exh. 4 seeking withdrawal of suit with liberty to file a fresh suit.
Plaintiff has demonstrated that there are formal defects and the
pleadings are not as per his instruction. In such circumstances plaintiff
is entitled to withdraw the suit with liberty to file fresh suit. Hence I
pass following order :
ORDER
1. Application Exh. 4 is allowed.
2. In view of withdrawal application Exh. 4 the suit no. 446/2019
disposed of as withdrawn with liberty to file fresh suit.
3. Court fees be refunded as per rule.
4. No order as to cost.
5. Pending NM No. 2556/2019, 2555/2019, 4810/2023 and Any draft
NM, CS be disposed of as infructuous.
(S.M. BUKKE)
Judge,
City Civil Court, Greater Bombay
Dated : 29.08.2026 C.R. No.03
1. Pronounced on : 29.08.2026
2. Directly Dictated on :29.08.2026
3. Checked and Signed on : 29.08.2026
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Suit no. 446-19 4
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME 29.08.2026/5.30 p.m.
NAME OF STENOGRAPHER Durgesh V. Mahajan
Steno Grade 3
Name of the Judge (with Court
Room no.)
HHJ Shri. S.M. Bukke
(Court Room No.03).
Date of Pronouncement of
Judgment/Order 29.08.2026
Judgment/Order signed by P.O. on 29.08.2026
Judgment/Order uploaded on 29.08.2026
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