1 dgm IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL JURISDICTION WRIT PETITION NO.3059 OF 2008 Mr.Bhupendra Vijuda Petitioner vs. Sarika Vijuda Respondent Mr.Tanvir Shaikh for the petitioner. Mr.Rahul Arote for respondent no.2. CORAM : R.V. MORE,J. DATED : 6th August, 2008 P.C. Heard the learned counsel for the respective parties. 2. The petition takes exception to the orders, by the Judge, Family Court on 7.8.2007 and 17.4.2008 passed below Interim Application No.76/2007 and Exhibit ‘16’ in Petition No.354/2007. By the order dated 7.8.2007 the petitioner was directed to pay an amount of Rs.5,000/- per month to the respondent towards interim alimony and by the order dated 17.4.2008 the petitioner’s application for modification of order dated 7.8.2007 came to be dismissed. 3. There is no dispute that the petitioner challenged the order dated 7.8.2007 passed in Interim Application 2 No.76/2007 by filing Writ Petition No.7071/2007. The writ petition was dismissed on 18.2.2008 for non-prosecution. Thereafter on 17.4.2008 the Family Court passed an order below Exhibit ‘16’ directing the petitioner to deposit the entire amount of maintenance as condition precedent for hearing of application at Exhibit ‘16’ filed by the petitioner for modification/review. 4. In my view, since Writ Petition No.7071/2007 is already dismissed for non-prosecution, the order of Family Court dated 7.8.2007 is merged in the High Court order and, therefore, the petitioner’s application at Exhibit ‘16’ for modification itself is not maintainable. The petitioner cannot challenge the order dated 7.8.2007 again by filing separate petition. Faced with this difficulty, the learned counsel for the petitioner seeks leave to withdraw the present petition with liberty to file application for restoration of Writ Petition No.7071/2007. 5. In the facts and circumstances mentioned above, I dispose of the writ petition by the following order: ORDER ORDER ORDER (1) Leave to withdraw the present petition is granted 3 with liberty to file fresh application for restoration of writ petition no.7071/2007. (2) The petitioner in pursuance of interim order passed by this Court in the above writ petition on 30.4.2008 has deposited an amount of Rs.35,000/-. So far as this amount is concerned, the petitioner is at liberty to file appropriate application for transfer of the said amount in the application that may be filed for restoration of writ petition no.7071/2007. (3) The petitioner is also at liberty to withdraw the application at Exhibit ‘16’ filed in the Petition No.354/2007 before the Family Court. [R.V. [R.V. [R.V. MORE,J.] MORE,J.] MORE,J.]