1 ao256-11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION rpa APPEAL FROM ORDER NO.256 OF 2011 ALONGWITH CIVIL APPLICATION NO. 376 OF 2011 M/s. Shivashree Constructions .. Appellant V/s. The Municipal Corporation of Greater Mumbai & Anr. .. Respondents ..... Mr. P.K. Dhakephalkar, Senior Counsel and Mr. S. R. Balekar i/b. Mr. S.D. Mishra for the appellant. Mrs. K. K. Soraan for respondent No.1-BMC. Ms. Riddhi Shah & Mr. B. A. Mendoca for respondent No.2. ..... CORAM : A. S. OKA, J. DATE : MARCH 31, 2011. P.C.:- Heard the learned Senior Counsel appearing for the appellant, the learned counsel appearing for the first respondent and the learned counsel appearing for the second respondent. 2. The learned senior counsel appearing for the appellant on instructions of the appellant seeks permission to withdraw the L.C. 2 ao256-11 Suit No.2043 of 2010 with liberty to file a substantive suit for specific performance of the agreement dated 2nd November, 2002. I have heard the learned counsel appearing for the respondents on the said request. 3. As the appellant has omitted to sue for specific performance, the present suit is likely to fail due to a formal defect. Hence, the prayer made by the learned senior counsel appearing for the appellant deserves to be accepted. It is obvious that all defences of the respondents to the fresh suit will remain open. 4. Hence, I pass the following order : :: O R D E R :: i. L. C. Suit No.2043 of 2010 is permitted to be withdrawn with liberty to institute a fresh suit for specific performance of the suit agreement. ii. All contentions of the parties in the fresh suit, if filed, are kept open. 3 ao256-11 iii. It is obvious that the fresh suit, if filed, will be decided on its own merits and will be decided without being influenced by the impugned order. iv. Appeal From Order is, accordingly, disposed of. v. Civil Application No.376 of 2011 does not survive and the same is disposed of. vi. The trial Court shall pass a formal order on the L. C. Suit No.2043 of 2010 in terms of this order. JUDGE