1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 646 OF 2004 Sachin Prakash Gaikwad........Appellant versus M/s. C.U. Marketing Company & ors........ Respondents. Mr. S.M. Railkar for the Appellant CORAM: RANJIT V. MORE, J. DATED : 20th OCTOBER, 2008. P.C.: 1. The appellant is the original plaintiff. The trial court by order dated 28-2-2003 returned the plaint to the appellant for presetation before proper court in accordance with the law. This order was challenged by the appellant by filing Regular First Appeal before lower appellate court. Since the same was also dismissed present Second Appeal is filed. Mr.Railkar fairly conceeded that the appellant ought to have filed A.O. against the trial court's order under Order 7 Rule 10. He further submits that if liberty is granted, the appellant is ready and willing to challenge the trial court's above order by filing A.O. before the lower appellate court. In this view of the matter, he seeks leave to withdraw the second appeal with liberty to file approproate proceeding in appropriate court. Leave with liberty 2 is granted. second appeal is dismissed as withdrawn. 6. In view of the dimissal of the Second appeal, the appellant is entitled to refund of the court fees in accordance with the law. (R.V. More, J.)