1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL No. 546 OF 2010 Hansraj Shivram Shirsath .. APPELLANT VERSUS Sau. Kamalbai Hansraj Shirsath .. RESPONDENT ... Shri Mukul Kulkarni, Advocates for Appellant CORAM :- S.V. GANGAPURWALA, J. DATE : 8th SEPTEMBER, 2010. ORAL ORDER: The present appellant is the original plaintiff, had claimed relief of declaration that the respondent is missing for more than 7 years, and it should be declared that she is dead. The said suit suffers from inherent defects i.e. in case when such declaration is asked, the State is required to be made a party or those persons who would be interested in the estate left by the deceased are also necessary party. The Courts below, had dismissed the suit on the count, that the plaintiff is not entitled for declaration and 2 the suit in the present form and substance is not tenable. In the light of the fact, that the suit suffers from inherent defects. Shri Kulkarni, learned counsel for the appellant seeks leave to withdraw the suit, with liberty to file fresh suit after curing defects. The Regular Civil Suit No. 25 of 2009 is allowed to be withdrawn, with liberty to file fresh suit on same cause of action. Consequently, Second Appeal does not survive and is dismissed. [S.V. GANGAPURWALA,J] SDM* 546.10SA