1 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3001 OF 2009 Gulshan Kumar Leekha .. Petitioner V/s Pradip Laxmikant Diwadkar & Ors. .. Respondents Ms. Gauri Godse for the petitioner. Mr. Pratap Patil for respondent no.3. CORAM : D.G. KARNIK, J. DATE : 6TH JULY 2010 P.C. : 1. Heard learned counsel for the petitioner and the respondent no.3 – the subsequent purchaser. None present for the respondent nos.1 and 2 though served. 2. Learned counsel for the petitioner seeks leave to withdraw the Suit No.64 of 2008 filed by the petitioner in the Court of Civil Judge, Junior Division, Karjat with liberty to file fresh suit in respect of the same subject matter. Learned counsel for the respondent no.3 has no objection for grant of such leave. However, since the respondent nos.1 and 2 are absent, I would consider it on 2 merits whether such leave can be granted. 3. The respondent no.1 is the owner of the property. By an agreement of sale dated 23 March 2008, the respondent no.1 agreed to sell the suit property to the petitioner. The respondent no.2 was joined as a consenting party to the said agreement. On 2 March 2008, the petitioner filed a suit against the respondent nos.1 and 2 for an injunction restraining them from selling the suit property to a third person. No interim relief was granted in favour of the petitioner. In the absence of any interim relief, the respondent no.1 sold the suit property to the respondent no.3 who claims to be a bonafide purchase for value without notice. The petitioner thereafter made an application for amendment of the plaint so as to join respondent no.3 as a party to the suit and also sought to claim relief for specific performance of the agreement of sale. Application was resisted and the trial court rejected the application for the reasons stated therein. That order is impugned in this petition. 4. Learned counsel for the petitioner submits that since the original suit was only for injunction and since the property has now 3 been transferred to the respondent no.3, it is imperative for the petitioner to file a suit for specific performance. Mere suit for injunction is likely to fail on account of technical defect. I am satisfied that the present suit is likely to fail on account of a technical defect and hence the case is covered by Order 23 Rule 1 of the Code of Civil Procedure. Hence, I am inclined to grant leave to the petitioner as prayed for. 5. Leave granted to the petitioner to withdraw Regular Civil Suit No.64 of 2008 filed by the petitioner in the Court of Civil Judge, Junior Division, Karjat with liberty to file fresh suit on the same subject matter subject to payment of costs of Rs.2,000/- to the respondent no.3 as a condition precedent. 6. In view of the withdrawal of the suit, the present writ petition does not survive and is disposed of.. (D.G. KARNIK, J.)