1/3 S.H.HADAP IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.1132 OF 2009 M/s.Neil Constructions .. Appellant V/s Shri.Madhav Laxman Ghodke & Ors. .. Respondents Mr.N.P.Deshpande for the Appellant. Mr.Sanjay Kshirsagar for the Respondents. CORAM: R.G.KETKAR, J. DATE: 7th March, 2012. P.C.: 1. Heard Mr.Nitin Deshpande, learned counsel for the appellant amd Mr.Sanjay Kshirsagar for the Respondents. By this appeal the appellant is challenging the order dated 08.05.2009 passed by the learned 7th Joint Civil Judge, Senior Division, below Exhibit 5 in Special Civil Suit No.681 of 2009. By that oder the learned trial Judge rejected the application Exhibit 5 taken out by the applicant (original plaintiff). 2. In support of this appeal, Mr.Deshpande submitted that the learned trial Judge dismissed the application at Exhibit 5 only on the ground that this Court in the order passed in Writ Petition No. 2709 of 2008 on 21.10.2008 at an interlocutory stage, prima-facie held that the agreement being merely an agreement for 2/3 S.H.HADAP development, cannot be enforced. Mr.Deshpande submitted that thereafter the suit was tried on merits and by judgment and decree dated 29.01.2010 the learned trial Judge dismissed the suit instituted by the 1st Respondent herein. 3. Mr.Kshirsagar does not dispute this position that the suit intituted by the 1st Respondent is dismissed on 29.01.2010. Since the impugned order is passed only on the basis of the order of this Court dated 21.10.2008 passed in Writ Petition No.2709 of 2008, and the suit itself is subsequently dismissed on 29.01.2010, in my opinion, ends of justice will be served by setting aside the impugned order dated 08.05.2009 and reviving the application Exhibit 5 in Special Civil Suit No.681 of 2009 before the learned trial Judge for deciding the same afresh, on merits and in accordance with law. 4. Hence the appeal succeeds. Appeal from order is allowed. The impugned order of the trial Court dated 08.05.2009 below Exhibit 5 in Special Civil Suit No.681 of 2009 is set aside and the said Exhibit 5 stands restored. 5. Parties agree to appear before the learned trial Judge on 19.03.2012. The learned trial Judge, thereafter, shall dispose of 3/3 S.H.HADAP the application at Exhibit 5 within three months from today. 6. In the meantime, it is directed that Respondent No.1 shall not create any third party interest in respect of the property described at Exhibit A to the Civil Application No.1398 of 2009. 7. Appeal from Order stands disposed of in the above terms. In view of disposal of Appeal from Order, nothing survives in the Civil Application No.1398 of 2009 and the same also stands disposed of. (R.G.KETKAR, J.)