wp 475-2026.odt 1 IN THE HIGH Court OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. WRIT PETITION NO. 475 OF 2026 PETITIONERS : 1. Smt. Kamla wd/o Kanhaiyalal Bachwani, Aged 67 years, Occ. Household, 2. Amit S/o Kanhaiyalal Bachwani Aged 41 years, Occ. Household, 3. Ku Arti D/o Kanhaiyalal Bachwani, Aged 35 years, Occ. Household, Nos.1 to 3, R/o Block no.1, Kukreja Nagar, Nagpur. (...Ori. Deft.Nos.1, 2 & 6 on R.A.) ..VERSUS.. RESPONDENTS : 1. Heena @ Sarita W/o Chandraprakash Godhani, Aged 53 years, Occ. Household, R/o Near Arya Samaj Mandir, Main Road, Jaripatka, Nagpur ...(Ori. Pltff. On R.A.) 2. Smt. Leena @ Poonam W/o Bhushan Khushalani, Aged 44 years, Occ Household, Opp. Chanduram Darbar, Sapna Building, R/o Jaripatka, Nagpur. ...(Ori.Defdt.No.3 on R.A.) 3. Smt. Anjali @ Bindiya /o Yogesh Kewalramani 2026:BHC-NAG:13033 wp 475-2026.odt 2 Aged 42 years, Occ. Household, R/o Near Mahatma Gandhi School Jaripatka, Nagpur. ...(Ori. Defdt. No.4 on R.A.) 4. Smt. Riddhi @ Hema W/o Kamla Manglani Aged 37 years, Occ. Household, R/o Hitesh Tower, Near Jagat Lawn, Ring Road, Jaripatka, Nagpur. ...(Ori. Defdt.No.5 on R.A.) 5. Smt. Veena @ Lajwanti W/o Deepa Kumar Amarnani, Aged 50 years, Occ. Household, R/o Opp. Shiv Orchid, M.S. Colony, Bhilgaon, Nagpur ...(Ori.Defdt. No.7 on R.A.) 6. Abhay S/o Suryabhan Pethe, Aged 43 years, Occ. Agriculturist 7. Duneshwar S/o Suryabhan Pethe Aged 49 years, Occ. Agriculturist, Nos.6 and 7, R/o Padole Nagar, Wathoda Road, Nagpur. ...(Ori.Defdt.Nos.8 & 9 on R.A.) -------------------------------------------------------------------------------------------------------------------------- Mr. S.B. Mohta Advocate for petitioner(s). Mr. Harish Dangre, Advocate for respondent No. 1. Mr. P.V. Navlani, Advocate h/f Mr. A.V. Khare, Advocate for respondent Nos. 2 to 4. Mr. A.P. Bhuibhar, Advocate for respondent No. 5. Mr. D.T. Shinde, Advocate for respondent Nos. 6 and 7. -------------------------------------------------------------------------------------------------------------------------- CORAM : NANDESH S. DESHPANDE, J. DATE OF RESERVING THE JUDGMENT : 24.09.2026. DATE OF PRONOUNCING THE JUDGMENT : 30.09. 2026. wp 475-2026.odt 3 JUDGMENT 1. Heard. 2. Rule. Rule made returnable forthwith. Heard finally with the consent of the parties. 3. The present petition is filed for quashing and setting aside order dated 16.10.2025 passed below Exhibits 1 and 65 by the 26th Joint Civil Judge, Senior Division, Nagpur, in R.C.S. No. 2650/2025, and also for rejecting the application at Exhibit 65. 4. Facts, as can be seen from the petition, are as under: The petitioners before this Court in the present Writ Petition are the original defendants. The respondent No. 1, who is the original plaintiff, instituted Regular Civil Suit No. 2650/2012 (new) corresponding to Special Civil Suit No. 667/2011 (old) against the present petitioners, who are the original defendant Nos. 1, 2, and 6, as also against the respondent Nos. 2 to 8, who are the original defendants 3 to 5 and 7 to 9, respectively. The said suit was filed for declaration, permanent and perpetual injunction, partition, separate possession, and cancellation of three deeds of relinquishment dated 04.03.2010. The petitioners herein, in pursuance to the suit summons, filed their written statement and opposed the claim of the respondent No. 1. As the wp 475-2026.odt 4 trial proceeded, the respondent No. 1 herein filed an application at Exhibit 48 under the provisions of Order VI Rule 17 of the C.P.C. to amend the plaint and for addition of parties. The said application was rejected by the Trial Court on 23.02.2023. A challenge to the said rejection also failed since this Court dismissed writ petition which assailed the said order bearing Writ Petition No. 2684/2023. 5. Thereafter, the respondent No. 1 filed an application under the provisions of Order I Rule 10 of the C.P.C. for addition of parties. However, the said application was also rejected, and challenge to the said order also proved unsuccessful as this Court dismissed writ petition bearing Writ Petition No. 5409 of 2024 on 21.02.2025. 6. In the conspectus of these facts, an application below Exhibit 65 came to be filed by the respondent No. 1 under the provisions of Order XXIII Rule 1(3)(b) read with Section 151 of C.P.C., seeking permission to withdraw the suit with liberty to file fresh on same cause of action. The said application was opposed by the present petitioners by filing their detail reply. However, the Trial Court, vide impugned order dated 16.10.2025, was pleased to allow the said application, thereby permitting to withdraw the suit with liberty to file fresh. It is this order which is impugned in wp 475-2026.odt 5 the present petition on grounds as enumerated in the petition. 7. I have heard Mr. S.B. Mohta, learned Counsel for petitioners, Mr. Harish Dangre, learned Counsel for respondent No. 1, Mr. P.V. Navlani, learned Counsel h/f Mr. A.V. Khare, learned Counsel for respondent Nos. 2 to 4, Mr. A.P. Bhuibhar, learned Counsel for respondent No. 5 and Mr. D.T. Shinde, learned Counsel for respondent Nos. 6 and 7. 8. Mr. Mohta, learned Counsel for the petitioner, by pointing me out the earlier orders passed by this Court in writ petitions filed by the respondent No. 1 herein, submit that the Trial Court has gravely erred in allowing the application seeking withdrawal of suit with liberty to file a fresh suit. It is his submission that the application seeking withdrawal with liberty for filing a fresh suit was squarely hit by the principles of interlocutory res judicata, and therefore, the Trial Court ought not to have granted permission as prayed for. It is his submission that there was no formal defect as such, as contemplated under the provisions of Order XXIII Rule 3(1)(a) or (b) which would entitle the plaintiff to withdraw the suit and to file a fresh suit. He places his reliance on a judgment of this Court reported in AIR 1950 Bombay 378, The Asian Assurance Co. Ltd. v. Madholal Sindhu and Ors.. By relying on paragraph No. 4 of the said judgment, he wp 475-2026.odt 6 points me out that mere absence of any party who is necessary for adjudication of the suit would not be a formal defect as contemplated by Order XXIII Rule 1(2), and therefore, the application ought not to have entertained. He points me out a judgment of the Hon'ble Gujarat High Court reported in AIR 2011 Gujarat 89, M/s. Pranjivandas Virjibhai & Ors. v. M/s Pravinkumar Mohanlal Modi, where judgment of this Court of Asian Insurance Company supra is followed. He also points me out judgment of the Hon’ble Mysore High Court reported in AIR 1971 Mysore 334, V. Narayanappa v. Narayanappa and another, for the same also. It is therefore his submission that even though unconditional permission for withdrawing the suit could have been granted, no liberty to file fresh can be granted. 9. Per contra, Mr. Dangre, learned Counsel appearing for the respondent No. 1, and Mr. Bhuibhar, learned Counsel appearing for the respondent No. 5, counter the submissions. They submit that the order passed below Exhibits 1 and 65 which is impugned in the present petition is perfectly legal and valid. By taking me through the impugned order, they point out that Trial Court in paragraph Nos. 6 onwards of the impugned order has expressly observed that the application for withdrawal after rejection of previous applications for amendment of plaint and wp 475-2026.odt 7 addition of party are not hit by the principles of res judicata, since the subject matter in those applications and the present application is different. They also submit that a finding of fact has been recorded that there is a formal defect in the suit, and therefore, the plaintiff is entitled to withdraw the suit. In nutshell, they support the impugned order. They also point me out that the provisions of Order XXIII Rule 1 (3) clauses (a) and (b) are sufficient enough to embrace within themselves the defect of formal defect as a sufficient ground, and therefore, the order is just and proper. 10. Mr. Khare, learned Counsel appearing for respondent Nos. 2 and 3, supports the petitioner and also state that the order impugned cannot withstand the scrutiny of law. 11. Rival contentions fall for my consideration. 12. The fact that there were previous applications made by the present respondent No. 1 below Exhibit 48 and Exhibit 57 seeking amendment of the plaint and addition of parties is not in dispute. It is also a matter of record that both the said applications were rejected by the Trial Court, and the said rejection attained finality since the challenge to the same before this Court proved unsuccessful. It would be, therefore, worthwhile to go through the said orders of this Court while rejecting the applications filed by wp 475-2026.odt 8 the respondent No. 1. 13. As can be seen from the said orders passed by this Court in the previous round of litigation between the parties, this Court has clearly observed that the principles of res judicata can also be applied at a subsequent stage of the proceedings in respect of orders already rendered final in those very proceedings. This Court, for recording the said finding, has relied on judgment of Hon'ble Apex Court reported in 1976 (4) SCC 66, Y.B. Patil and Others v. Y.L. Patil, as also judgment of this Court reported in, 2005 (4) Mh.L.J. 868, Anandrao Raghobaji Malewar v. Heilmittel Pharmaceuticals. Even though, it has been vehemently argued by Mr. Dangre, learned Counsel appearing for the respondent No. 1, that principles of interlocutory res judicata would not apply to the application seeking permission to withdraw the suit, but it would apply to the subsequent suit filed in pursuance to the said application, I am hardly impressed by this submission. It is a settled principle of law that the principles of interlocutory res judicata would apply not only to different suits, but also at different stages in the same suit. If the analogy as put forth by Mr. Dangre is accepted, the doctrine of interlocutory res judicata would have no meaning and a litigant would be entitled to file successive applications even though said applications are rejected wp 475-2026.odt 9 in the in the pending suit. Thus, I do not find any merit in the submission of Mr. Dangre. 14. As has been rightly pointed out by Mr. Mohta, the Division Bench of this Court in The Asian Assurance Company (supra) has specifically held that mere absence of any party who, in the view of the plaintiff, was was necessary for adjudication of the suit cannot be said to be a formal defect, and therefore, in my considered opinion, the Trial Court gravely erred in allowing the application. 15. Mr. Bhuibhar, appearing for respondent No. 5, has placed reliance on a Full Bench judgment of this Court reported in AIR 1940 Bombay 121, Ramrao Bhagwantrao Inamdar and Anr. v. Babu Appanna Samage and Ors., to state a fact that what grounds are analogous to formal defects, it is necessary to know what defects are to be deemed formal. However, in the same judgment, the Full Bench has recorded that the expression 'formal defect' must be given a wide and liberal meaning and must be deemed to connote every kind of defect which does not affect the merits of the case, whether that defect be fatal to the suit or not. The proposition as laid down in the said Full Bench judgment cannot be disputed. However, the question in the present case is whether, in view of the facts that earlier application for amendment as also wp 475-2026.odt 10 addition of parties was rejected twice by the Court and the order was holding the field, whether the plaintiff can be granted permission to withdraw the suit on the same set of facts. I have already opined that the same cannot be done, since it would be squarely hit by the principles of interlocutory res judicata. 16. Reliance has been placed by the respondents on a judgment reported in 2011 (2) SCC 705, Rajendra Prasad Gupta v. Prakash Chandra Mishra and others, to state that there is no prohibition in the Code for withdrawal of an application filed for withdrawal of the suit. However, the facts in the present matter are different. 17. Mr. Mohta has also relied on judgment of this Court reported in AIR 1956 Bombay 632, Tarachand Bapuchand v. Gaibihaji Ahmed Bagwan, wherein it is expressly stated that non- joinder of parties and failure to make a proper claim is not a formal defect thereby entitling the plaintiff to withdraw the suit. The same view has also been followed by the Himachal Pradesh High Court in a judgment of Janak Raj and Another v. Sukhdev and Others, reported in 2019 SCC OnLine HP 498. The said judgment also relies on judgment of the Division Bench of this Court in Asian Assurance Company Limited, (supra). 18. Thus, taking into consideration all these aspects, it wp 475-2026.odt 11 cannot be said that the judgment that the order of the Trial Court passed below Exhibit 1 and 65 is sustainable in law. The order thus suffers from perversity, in as much as it does not take into consideration the effect of the earlier applications seeking same relief being rejected. The order, therefore, is liable to be interfered with in writ jurisdiction, since the same suffers from jurisdictional error. In that view of the matter, the following order is passed: ORDER i) Writ petition is partly allowed. ii) The order dated 16.10.2025 passed below Exhibit 1 and 65 by the 26th Joint Civil Judge, Senior Division, Nagpur, in R.C.S. No. 2650 of 2025, is quashed and set aside to the extent it grants permission to file a fresh suit on the same subject matter. However, the plaintiff, i.e. the respondent No. 1, is allowed to withdraw the suit unconditionally. 19. With this with these directions, the petition is partly allowed and disposed of in the above terms. Rule is made absolute. (NANDESH S. DESHPANDE, J.) wp 475-2026.odt 12 After pronouncement of the judgment, Mr. H. D. Dangre learned Counsel appearing for the respondent No. 1 makes a request for staying the effect and operation of the said judgment. Mr. S.B. Mohota learned Counsel for the petitioners however vehemently opposes this. Looking at the request made, the effect and operation of the said judgment is stayed for a further period of four weeks from today. However, it is made clear that after the expiry of four weeks the said stay would be automatically vacated without further reference to the Court. (NANDESH S. DESHPANDE, J.) Jayashree.. Signed by: Mrs. Jayashree Pethe Designation: PA To Honourable Judge Date: 01/10/2026 12:19:59