1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.1063 OF 2009 WITH CIVIL APPLICATION NO.1311 OF 2009 Shri Dilip G. Kedari ..Appellant V/s Municipal Corporation of Greater Mumbai ..Respondents ---- Mr.R.D.Dave with A.B.Dubey i/by Amit Kasbe for the appellant. Mrs. K.K.Soraan for the respondent/BMC. ---- Coram : R.S.MOHITE,J Date : 12th October, 2009. PC 1 Heard both sides. In my view, appeal can be disposed off finally at the stage of admission. Hence, admit. Matter is heard finally forthwith. 2 At the very outset, Advocate for the appellant/plaintiff states that his suit was for challenging a notice under Section 351 of the BMC Act which was issued on 4.9.2009. He states that after receiving this notice he submitted a reply to the notice on 14.9.2009 which was received in the office of the Corporation on 15.9.2009. He has annexed a copy of his reply along with compilation which bears the endorsement of the Corporation. It appears that in spite of the reply, a final order came to be passed by the Corporation directing demolition on 22.9.2009. On perusal of this order, it is seen that it is mentioned therein 2 that no reply was filed. This appears to me to be the case of non application of mind. Advocate for the appellant states that he will not insist for challenging the show cause notice and if final order passed by the defendant is withdrawn with liberty to pass a fresh order after following the rules of natural justice, his client is not only willing to withdraw the appeal but also willing to withdraw the suit. Advocate for the Corporation states that this course of action would be preferable instead of keeping the suit pending for several years. In the circumstances, on a statement made by the Advocate for the Corporation, the impugned order dated 22.9.2009 stands withdrawn with liberty to pass a fresh order after following rules of natural justice and in accordance with law. In view of this withdrawal, Advocate for the plaintiff/appellant seeks to withdraw his suit. Suit is also dismissed as withdrawn. City Civil Court to pass a formal order in this regard. It is made clear that this order does not affect the show cause notice and the powers of the Corporation to pass a final order after considering the reply. As the suit stands dismissed as withdrawn, the appeal does not survive and the same also stands disposed off. CIVIL APPLICATION NO.1311 OF 2009 As the main appeal is disposed off, Civil Application does not survive and stands disposed off accordingly. (R.S.MOHITE,J) 3