spb/- 1 ao573-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION APPEAL FROM ORDER NO. 573 OF 2010 ALONGWITH CIVIL APPLICATION NO. 745/2010 Mr. Maroof Ahmed Khan ... Appellant.. Vs. Mr. Jamshed H. Wadia ... Respondent. --- Mr. G.S. Godbole i/by Suresh Gole for the Appellant. Mr. Viren Asar i/by Wadia Ghandy & Co. for the Respondent. ----- CORAM : D. G. KARNIK, J. DATE : 08th DECEMBER, 2010. P.C. 1 This matter was heard on the last date for sometime. Difficulty was expressed by the learned counsel for the defendant about the identification of the suit property with reference to the description given in the plaint. In view thereof, the appellant- plaintiff was directed to file in the court a plan of the suit property drawn to a scale. Accordingly, the appellant (original plaintiff) has filed a plan drawn to a scale 1 : 100 by M/s. Joshi Talegaonkar Associates, Architects and Engineers alongwith an affidavit of the appellant. Perusal of the plan filed in this court and the perusal of the sketch plan annexed to the plaint shows that there is spb/- 2 ao573-10.sxw vast difference in the two plans. In view of this, the learned counsel for the appellant, on instruction of the appellant who is present in the court, seeks leave to withdraw the notice of motion with liberty to the appellant to approach the trial court for amendment of the plaint and to take out fresh notice motion with appropriate description of the suit property. 2 The learned counsel for the respondents submits that the description of the property as shown in the plan which is produced in the court is also not correct. Needless to say that he is free to raise all objections to the application for amendment when made to the trial court. However, since the description of the property of which the appellant claims to be in possession and description of the property given in the plaint is materially different and the motion is likely to fail on that technical ground, leave to withdraw the motion needs to be granted under Order 23,Rule 1 of the civil procedure code with liberty to the plaintiffs to approach the trial court with an application for amendment. Needless to say that if an application for amendment is made the trail court shall consider it on its own merit. All contentions to oppose the application for amendment can be raised by the defendant in the trial court. In view of this, I pass following order : spb/- 3 ao573-10.sxw ORDER i. The Appellant is allowed to withdraw the Notice of Motion No. 2301/2009 filed in the trial court with liberty to file a fresh motion in respect of the same subject matter. ii. The appellant is also permitted to file application for amendment in the trial court. If such an application is made, the trial court shall consider such application on its own merits after considering all the objections that may be raised by the respondent -defendant. iii. In view of the withdrawal of the notice of motion, the impugned order and the appeal does not survive. iv. Appeal is disposed of accordingly. v. In view of the disposal of the Appeal itself, the Civil Application No. 745 /2010 does not survive and the same is disposed of. [D.G. KARNIK, J.]