-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION REVIEW PETITION NO. 28 OF 2008 IN WRIT PETITION NO. 2285 OF 1994 Dalsinghar Damodar Thakur ).. Petitioner Versus Kurbanbhai Mohammed and others ).. Respondents Mr G R Mishra for the Petitioner. Mr G B Kedia for Respondent No.1. Mr S B Amin for Respondent No.4. Ms Kumud Bhatia for Respondent Nos.8 and 9. CORAM: SWATANTER KUMAR, C. J. & DR. D.Y. CHANDRACHUD, J. DATED: 1ST AUGUST 2008. P.C. Vide our order dated 27th August 2007, we had disposed of the Notice of Motion as well as the Writ Petition by remanding the matter to the Charity Commissioner. The Petitioner filed a Review Application praying that the said order be recalled and the Petitioner should be heard on merits and decided in accordance with law. Review Application No.9 of 2008 came up for hearing before us and vide our order dated 28th March 2008 we dismissed the Review Application as -2- well. The orders dated 27th August 2007 and 28th March 2008 were challenged by the present Petitioner before the Supreme Court in Special Leave to Appeal (Civil) No.13778-13779 of 2008. Vide order dated 2nd May 2008, the Supreme Court felt that the Review Application has been dismissed only on the ground of delay of 114 days and while condoning the delay, Review Application was restored and placed for hearing before this Court. The order of the Supreme Court reads as under :- “ Heard. No merit. The SLP is dismissed. It is however noticed that the review petition filed by the petitioner has been dismissed by the High Court only on the ground of delay of 114 days. We are of the view that the High Court should have condoned the delay of 114 days and review petition should have been disposed of on merits. Accordingly we condone the delay of 114 days in preferring review petition before the High Court. The review petition is restored to record. The High Court is requested to dispose of the review petition on its own merits.” 2. In furtherance thereto, the Review Petition has been placed for hearing before us again. -3- 3. At the outset, we will like to notice that when we dismissed the Review Application vide our order dated 28th March 2008, it was not only on the ground of limitation, but even on merits we had found no merit in the submissions made in the Review Application. It will be useful to notice the relevant part of the order dated 28th March 2008 at this stage itself, which reads as under :- “ ..... The application itself is beyond the purview and scope of Order 47 of the Code of Civil Procedure. It is averred that the applicant had not instructed his counsel for granting consent to the passing of the order dated 27.8.2007. Neither affidavit of the counsel has been filed nor there is any material to that effect. In any case, this practice needs to be deprecated. Reference can be made to the law laid down by the Supreme Court in Beyram Pestonji Jariwala vs Union Bank of India and others AIR 1991 SC 2234 where it was held that counsel has the authority to enter into a compromise and it is binding. Viewed from any angle, even the review application does not make out any case for order dated 27th August, 2007 to be recalled. No merits in both the applications. Hence, both are dismissed.” 4. We asked the learned Counsel appearing for the Petitioner if there was any factor which was not pressed before the Court on 28th -4- March 2008 when the order was passed, but the learned Counsel was unable to point out any such factor. The learned Counsel, of course, reiterated his submissions. According to the learned Counsel now appearing for the Petitioner, the earlier learned Counsel had given consent without specific instructions of his client. This contention has already been dealt by us and we see no reason to take any view different than the one taken by us in that order. 5. It would be useful to notice that ;in our judgment dated 27th August 2007, we have also referred to the order dated 12th June 2007 passed by the Court during the pendency of the Writ Petition. In that order, it was clearly noticed that parties are prepared to have inter se bidding in the Court itself to which they would have no objection and whosoever succeeds then proceed in accordance with law. Parties were even given liberty to file their bids in relation to the property in question. This conduct and participation thereafter without any protest by the Petitioner or the learned Counsel, clearly shows that the Petitioner had accepted a situation in facts and in law other than which was to his advantage by virtue of the order of the Charity Commissioner. The consent was given by the learned Counsel on 27th -5- August 2007 i.e. nearly two months after the order dated 12th June 2007. We must notice at the cost of repetition that normally the Counsel appearing for a party could have the power to settle the matter unless such power was specifically excluded as per the Power of Attorney or authority given to him. The judgment of the Supreme Court in the case of Beyram Pestonji Jariwala vs Union of India and others, AIR 1991 SC 2234, is a complete answer to this kind of an argument. It is also significant to mention that nearly 14 years have passed away since the Charity Commissioner had passed the order and it will be in the interest of the Trust to have the issue decided in accordance with law. 6. For the reasons aforestated, we find no merit in the Review Petition. The same is dismissed. No order as to costs. 7. In view of the dismissal of the Review Petition, nothing survives in Notice of Motion No.60 of 2008 and the same is disposed of accordingly. CHIEF JUSTICE -6- DR. D.Y CHANDRACHUD, J.