1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5315 OF 2009 Smt.Shakuntala Ramrao Kawade .. Petitioner Versus Kishore Vitthalrao Kawde & Ors. .. Respondents Mr.S.R.Page for petitioner Ms.P.S.Cardoz, A.G.P. For State CORAM : S.C.DHARMADHIKARI, J. DATE : 26th June 2009. P.C.: 1] The suit in question has been dismissed as abated by the Trial Court. That decision was challenged in the Lower Appellate Court. During the pendency of that appeal, it dawned upon some of the heirs of the deceased – plaintiff No.1 that they should move the court and seek their substitution in place of deceased plaintiff. They made such an application in the pending appeal of the original plaintiff No.2 appellant. The lower Appellate Court has dismissed that application and aggrieved by that dismissal this petition is filed. 1 2] The suit in question has been dismissed as abated. The abatement has occurred because of failure of plaintiff to implead the heirs and legal representatives of the deceased plaintiff No.1. Upon dismissal of the suit that decision is questioned by the appellant – original plaintiff No.2. In his appeal, the heirs and legal representatives of the deceased plaintiff No. 1 sought to implead themselves, not as Appellants in the pending appeal or by claiming joinder in the appeal but by seeking substitution as party plaintiffs in the suit. The suit is already disposed of. It is no longer on the file of the Trial Court. Such being the position, the application of petitioners was misconceived. 3] After this position was noticed by Mr.Page, he sought appropriate liberty from the Court so that the petitioners have an opportunity to agitate their claim and assert their rights. In the peculiar facts of this case, I permit the petitioners to withdraw the application preferred viz., Exh.53 in Civil Appeal No.53 of 2005. That application is dismissed as withdrawn with liberty to petitioners/ applicants to adopt appropriate proceedings. All contentions of parties in that behalf are kept open. Since this application made before the lower appellate court, upon which the impugned order is passed, itself is permitted to be withdrawn, it is not 1 necessary to test the correctness and validity of the order or the observations made therein. Petition is disposed of with liberty to petitioners to adopt appropriate proceedings. (S.C.DHARMADHIKARI, J)