1 mss WP5240 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO. 5240 OF 2011 Mr. Sudhir Sakharam Gurav .. .. Petitioner Vs. Mahavirr Enterprises .. .. Respondent Mr. Rohan Cama i/b P.P. More for the petitioner Mr. Pravin Samdani, Sr.Counsel, Mr. Sharan Jagtiani, Counsel a/w Advocate Mr. Rajesh Talekar i/b K. Ashar & Co. for respondent. CORAM: G. S. GODBOLE, J. DATED: 7/10/2011 P.C. Rule. Rule made returnable forthwith. K. Ashar & Co. waives service on behalf of the respondent. Petition taken up for hearing by consent of the parties forthwith. By consent of the parties, the following order is passed. 1. The petitioner is allowed to withdraw the application Exhibit-74 in R.A.E. Suit No. 647/981 of 2009 filed in the Court of Small Causes at Mumbai with liberty to file a fresh application for the same relief on 2 mss WP5240 or before 13/10/2011. Liberty as prayed for is granted. Consequently the impugned judgment and order dated 23/6/2011 passed by the learned Judge of the Small Causes Court at Mumbai, below Exh.-74 in R.A.E. Suit No. 647/981 of 2009 does not survive for consideration on account of the withdrawal of the application. However, if the application is not filed on or before 13/10/2011, the writ petition will stand dismissed. The respondent will file reply on or before 20/10/2011 by serving an advance copy on the petitioner and the petitioner will file a rejoinder, if any on or before 3/11/2011 again by serving an advance copy on the advocate for the respondent. The learned Judge of the trial court is directed to hear and decide such application afresh on or before 11/11/2011. 2. It is clarified that all rival contentions of both the parties are expressly kept open to be agitated at the time of the hearing of such new application. It is further clarified that this order shall not be treated to be an expression of opinion on merits of the application for amendment in any manner and while deciding the new application to be filed by the petitioner, the learned Judge of the trial court will not be influenced either by the impugned order which does not survive for consideration on account of withdrawal of application for 3 mss WP5240 amendment Exh.-74 or this order. 3. The learned Judge of the trial court is requested not to proceed to decide the suit till 13/10/2011 which is the outer date fixed for filing of a fresh application for seeking the same amendment with appropriate averments. It is clarified that the hearing of the suit has not been stayed. 4. Since the petitioner has requested for withdrawal of his application with liberty to file a fresh application, the petitioner shall pay a sum of Rs.5,000/- towards costs to the respondent. Payment of costs to the advocate for the respondent will amount to sufficient compliance of this order. In case costs are not paid within a period of four weeks from today, liberty to apply to this court, is given to the respondent for recalling this order and passing appropriate orders on merits. 5. All the parties including the learned Judge of the trial court to act on authenticated copy of this order. Writ of this order to be sent forthwith. 4 mss WP5240 6. Petition is disposed of. 7. In view of disposal of the writ petition, the civil application does not survive and is disposed of. (G. S. GODBOLE, J.)