Mgn IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.678 OF 2009 IN WRIT PETITION NO.5947 OF 2008 Caxton House Properties Pvt. Ltd. ..Applicant Vs. Board of Trustees of Port of Mumbai & Anr. ...Respondents Mr. D.D. Madan with Mr. Atul V.Daga, Mr. Prasad Batavia and Mr. Rajiv Wagle i/b. Wadia Ghandy & Co., for the Petitioner. Mr. E.P. Bharucha along with Mr. Parag Khandhar i/b. Mulla & Mulla for Respondents. CORAM : F.I. REBELLO & D.B. BHOSALE, JJ. DATED : 7TH APRIL, 2010 P.C. By this Application the applicants pray that the order dated 15th January, 2009 to the extent that it is not set out in the order that liberty was granted to file fresh petition on the same cause of action in the event the representation made by them before the concerned Authority is not decided in their favour or no order is passed thereon be clarified that Petitioners are at liberty to file fresh petition on the same cause of action if the representation is not decided or rejected or in the alternative to recall the order dated 15th January, 2009. 2. In the application is is set out on behalf of the applicants that this Court inadvertently did not mention in the order that the applicants would have liberty to file fresh petition. The application was taken out on 2nd March, 2009. 3. A reply has been filed on behalf of Respondent Board by Shri Jasaskar Bose opposing the grant of the relief as prayed for. It is pointed out that the matter was heard when the Advocate arguing the petitioner on realizing or apprehending that the Court was not in favour of admitting the petition informed that they had preferred a representation to the Joint Secretary (Ports) Ministry of Shipping and hence did not desire to prosecute the petition and sought liberty to withdraw the same. That liberty was granted on the application made by the Advocate in open Court after the same was fully argued. The joint representation was dismissed by the Central Government on 27th February, 2009 and the present application was filed only after that. The present application, it is set out, is on the basis that inadvertently it remained to be mentioned in the order that the applicant is at liberty to approach this Court in the event the concerned authority does not decide the representation or decides against the applicants. There is also nothing in the order to set out that the Advocate who made the statement on behalf of the petitioner was not authorised to make such statement. It is pointed out that the statement made in the application is incorrect as no liberty was sought by the petitioner or on its behalf at the time of withdrawing the petition and no such liberty had been sought. Reference is made to the affidavit filed by the Advocate to contend that the statement therein that he was neither instructed by the Advocates on record for the petitioner or the petitioner to withdraw the petition is not correct. If what is set out was correct it is stated that the petitioner ought to have made an application as early as possible and not not waited for eight months. 4. The lawyer who appeared for the party Shri Rajeev D. Waglay has filed an affidavit on 2nd September, 2009. It is pointed out that the Advocate who was to appear in the petition had to urgently rush to another Court and he had therefore requested Shri Waglay to appear in the matter on behalf of the petitioner. In the course of hearing it was mentioned to the learned Bench that the petitioner had written letter dated 9th December, 2008 to the Joint Secretary, Ports, Ministry of Shipping, New Delhi. It is then set out as under:- “I say that on the aforesaid date, I carried an impression that if the Petitioner withdraws the Writ Petition and in the event the settlement talks fail, the Petitioner wold have the liberty to approach this Hon’ble Court by filing a fresh Petition. I say that I was neither instructed by the Advocate appearing in the matter nor the Petitioner to withdraw the above Petition.” 5. At the time of hearing the Civil Application on behalf of the respondents their learned Counsel has invited our attention to the Judgment in the case of The State of Bombay v. Morarji Cooverji, 61 B.L.R. 318. Our attention is invited to the observation that considering the relief in the petition that it is not sufficient that the party comes out with the case on merits he must come with clean hands and not only must he not suppress any material facts, but must show the utmost good faith, and must also satisfy the Court that the making of the order will do justice and that justice lies on his side. Our attention is also invited to the judgment in Laxmibai Laxman Medhi & Ors. vs. Kesarimal Premchand Parmar 2007 (5) Mh. L.J. 219 to contend that the provisions of Order 23 Rule 1 would be applicable even to a petition under Article 227 of the Constitution of India. 6. We have heard the learned Counsel for the parties. The question for our consideration is whether the relief as prayed for by the applicants ought to be granted. In the instant case the effect of the order would be that the petitioner is precluded from preferring a S.L.P., in the Supreme Court against the order. Secondly, they cannot also file a fresh petition in respect of the same cause of action and on those grounds as the petition was withdrawn without leave. The petitioner has, therefore, prima facie not benefitted in any manner by withdrawing the petition as he has foreclosed the remedy that they may have had in the event an order was passed by this Court dismissing the petition. Whilst considering this, the Court must also consider whether the Counsel appearing for the petitioner had fully known the consequences of an order withdrawing the petition without seeking leave. 7. It is in that context that the affidavit filed by Shri Rajeev Waglay ought to be considered. It appears that the Lawyer who was to actually argue the matter had to go before some other Bench and Shri Rajeev D. Waglay was asked to appear in the matter. Shri Waglay stated that he was under the impression that if the representation was rejected, the petitioner would be entitled to maintain a fresh petition on the same cause of action. He further sets out that he was neither instructed by the Advocate appearing in the manner nor the petitioner to withdraw the petition and was under bonafide impression that he will be entitled to maintain a fresh petition. The order of withdrwal visits the petitioner with severe civil consequences. 8. In the instant case atleast there is no suppression by the party of any facts when the petition was filed or this application moved which would disentitle consideration of the application. At the highest the stand that there is variance between the stand of the petitioner and the affidavit of Shri Waglay. 10. On the facts of the present case and what we have narrated above, in our opinion, the ends of justice would be met if the applicants are saddled with costs in a sum of Rs.25,000/- as a condition precedent and the application is allowed in terms of prayer clause (a) which reads as follows:- “(a) that this Hon’ble Court be pleased to clarify that in order dated 15th January, 2009 (Ex-”A” hereto) the petitioner were granted liberty to file a fresh Writ Petition based on the same cause of action, in the event the representation made by them before the concerned authority is not decided in their favour or no order is passed thereon.” The order dated 15th January, 2009 stands corrected accordingly. Costs to be paid to the respondent No.1 within four weeks from today. (D.B. BHOSALE, J.) (F.I. REBELLO,J.)