Shree Chandrashekhar, J. - (1.) I.A. No. 9730 of 2018 This application has been filed seeking permission to change nomenclature of the case for converting the writ petition into miscellaneous appeal under Order XLIII Rule 1(c) CPC. In support of this application the learned counsel for the petitioner has referred to decision in "Nawab Shaqafath Ali Khan and others vs. Nawab Imdad Jah Bahadur and others reported in, 2009 5 SCC 162. The impugned order dated 25.01.2017 records that after the probate case was filed one of the opposite parties had died, however, steps for substitution was not taken by the plaintiff for 6 long years. Accordingly, the probate case was dismissed for non-prosecution.
(2.) In view of the aforesaid fact, whether dismissal of the probate case would come within the purview of Order IX Rule 9 CPC or not is an issue which may be contested by the respondents. Moreover, there would be an issue on limitation on which also the respondents may have something to say. Accordingly, I.A. No. 9730 of 2018 is dismissed. W.P.(C) No. 1318 of 2017
(3.) The learned counsel for the petitioner seeks permission to withdraw the writ petition with liberty to the petitioner to avail of the remedy as available in law.;