1 dgm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.294 OF 2008 IN NOTICE OF MOTION NO.1890 OF 2006 IN SUIT NO.1347 OF 2006 Raj Doshi Exports Private Limited Appellants vs. 1. Gandhi Bhuvan Co-operative Housing Society Limited. & ors. Respondents Mr.P.K.Dhakephalkar, Senior Advocate with Mr.Kunal Cheema i/b.Mr.Yadunath Chaudhari for the Appellants. Mr.A.Y.Sakhare, Senior Advocate along with Mr.Vivek Walawalkar i/b.M/s.Mahesh Jani & Co. for Respondent No.1. CORAM : S.B.MHASE & R.V. MORE,JJ. DATED : 17th September, 2008 P.C. We heard this matter at length. 2. This is an appeal directed against the order dated 30.04.2008 passed in Notice of Motion No.1890/2006 in Suit No.1347/2006. 3. The learned senior counsel for the Plaintiff-respondent no.1 makes statement that the original plaintiff-respondent may be allowed to withdraw the Notice of Motion No.1890/2006 with a liberty to file 2 an application under Order XXXVIII Rule 5 of C.P.C. and such other provision which permits him to do so. He further submitted that till the alternate Notice of Motion is filed the interim relief which has been granted in Notice of Motion No.1890/2006 may be continued. 4. The learned senior counsel for the Appellants has no objection to this course. 5. In view the above statements and the concession given at the bar, the following order is passed: ORDER ORDER ORDER (i) The Plaintiff-respondent is allowed to withdraw the Notice of Motion No.1890/2006 in Suit No.1347/2006 with a liberty to file an alternate Notice of Motion under Order XXXVIII Rule 5 of C.P.C. and/or such other provisions as may permit him to do so. In view of the withdrawal of the Notice of Motion No.1890/06, the order passed in the said Notice of Motion does not survive except as directed by us in the latter part of this order. 3 (ii) The Order passed in Notice of Motion No.1890/2006 shall continue for a period of four weeks from today within which period the plaintiff-respondent shall file the alternate Notice of Motion as permitted above. (iii) We further make it clear that the fresh Notice of Motion which may be filed will be decided on its own merits without being influenced by the observation in the earlier Notice of Motion. We further make it clear that we have granted liberty to file fresh Notice of Motion that does not mean that we are of the opinion that the plaintiff-respondent is entitled to have the reliefs in the fresh Notice of Motion and that should be decided on its own merits by the learned Single Judge. 6. The Appeal stands disposed of in the above terms. [R.V.MORE,J.] [R.V.MORE,J.] [R.V.MORE,J.] [S.B. [S.B. [S.B. MHASE, J.] MHASE, J.] MHASE, J.]