1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.532 OF 2008 IN WRIT PETITION NO.1662 OF 2008 Cricket Association of Jharkhand .....Petitioner V/s. The Board of Control for Cricket in India and Ors. ..... Respondents Mr.C.S.Balsara a/w Mr.D.D.Mehta, Mr.H.N.Vakil and Mr.U.D.Mehta i/by Mulla & Mulla & Craigie Blunt and Caroe, for the petitioner. Smt.Akhila Kaushik, for respondent Nos.1 & 2. Mr.Rajiv Kumar Singh a/w Mr.Ramchandra Yadav, for respondent Nos.3 and 4. Mr.Naresh H. Makani, respondent No.5 present in person. CORAM :P.B.MAJMUDAR & A.A.SAYED, JJ. DATE : SEPTEMBER 11, 2009 P.C. 1. Heard the learned counsel for the parties at some length. By way of this notice of motion, the petitioner has prayed that the order passed by this Court on 21-10-2008 may be recalled and the writ petition may be restored to the file and may be decided on its own merits. The writ petition was filed by Cricket Association of Jharkhand and as per the title of the writ petition, the name of the petitioner is described as under : “Cricket Association of Jharkhand, a Society registered under the Provisions of the Society Registration Act, 1860, having 2 its Registered Office at Keenan Stadium, Jamshedpur, Jharkhand, through its Treasurer, Naresh Makani, S/o Shri Himmat Lal Makani, Resident of 202-SS Sadan, Gulmohar X Road No.6, JVPD Scheme, Juhu, Mumbai – 400 049. 2. At the time of hearing of the said writ petition, on 21-10-2008, the Treasurer of the petitioner’s Association Mr.Makani, who is respondent No.5 in this notice of motion, was present before us along with the Advocate appearing for the respondents and pointed out that the dispute is resolved, for which a letter was produced stating that the dispute is settled. That letter was written by respondent No.5 Mr.Makani, to his Advocate Gulvant C. Tule. 3. This Court by its order dated 21-10-2008 noted that the Treasurer of the Cricket Association was present before the Court, who had informed the Court that his Advocate his sick. The learned counsel for respondent Nos.3 & 4 informed the Court that he has been informed by his client that the petitioner is going to withdraw this petition. The learned counsel for respondent Nos.1 & 2 identified the Treasurer of the petitioner’s Association and on that basis, the writ petition was disposed of as withdrawn. Since the learned Advocate for the petitioner was not present, the matter was disposed of on the basis of praecipe on record as 3 well as on the basis of the letter of the petitioner, which was annexed with the praecipe. 4. This notice of motion has now been filed by the Cricket Association of Jharkhand, wherein Mr.Makani is made one of the respondents in this notice of motion. 5. It is the case of the petitioner’s Association that Mr.Makani was not authorized to withdraw the petition and without consulting the Secretary of the petitioner’s Association Mr.Saxena, the petition came to be withdrawn. It is submitted by the learned counsel for the petitioner that Mr.Makani had no authority to withdraw the petition and misused his position as Treasurer. It is therefore, prayed that the writ petition may be restored to the file. The learned counsel for respondent Nos.1 & 2 on the other hand, submitted that the original petition was filed by the Association through its Treasurer Mr.Makani and Mr.Makani therefore, was authorized to withdraw the petition on behalf of the Association. His authority as a Treasurer was never withdrawn by the Association and that is how Mr.Makani has withdrawn the writ petition on the ground that the dispute is settled. She therefore, submitted that the writ petition should not be allowed to be restored simply because there is internal dispute between the members of the petitioner’s Association. The learned counsel for respondent Nos.3 and 4 supported the arguments of learned counsel 4 for respondent Nos.1 and 2. The respondent No.5 who is appearing in person, submitted that since the dispute was settled and various meetings were held in Hotel at Mumbai between the members of the Association, it was decided to withdraw the petition. Mr.Makani further states that still today he is the Treasurer of the Cricket Association of Jharkhand. The learned counsel for respondent Nos.3 and 4 submitted that this petition is not maintainable as it is filed by the Association which is not registered under the Societies Registration Act. However, the said issue is not required to be examined in this notice of motion as the only question which arises for determination of this Court is as to whether the writ petition should be restored to file or not. It is required to be noted that the Advocate Mr.Tule, who was appearing for the Petitioner’s Association, has filed his affidavit. He has pointed out in the affidavit that Mr.Makani was the only representative of the Association who interacted with him since the inception of the writ petition. On 18-10-2008 Mr.Makani contacted him in his office with a letter addressed by the Association requesting him to withdraw the writ petition immediately. On that basis, he immediately filed a praecipe for withdrawal of the writ petition. On the relevant date, when the matter came on board, the Advocate was sick and he was not present. But Mr.Makani appeared in person and the writ petition was withdrawn. 5 6. In the affidavit, he has stated that subsequently Mr.Saxena informed the Advocate that he had never instructed Mr.Makani to withdraw the petition. Thereupon, the Advocate had informed him that he has interacted only with Mr.Makani and he has no reason to disbelieve Mr.Makani, especially when he has given instructions on the letterhead of the Association. On that basis, he had filed precipice to withdraw the writ petition. 7. During the course of hearing, the learned counsel for the petitioner submitted that though Mr.Makani was authorized to file writ petition, he was not authorized to withdraw the writ petition as there was no resolution passed to that effect. So far as withdrawal order of the writ petition is concerned, it is required to be noted that since the petition is filed by the Association through Mr.Makani and when said Mr.Makani made a statement that the dispute is settled by remaining present before the Court, in our view, writ petition cannot be allowed to be restored to the file. However, if the petitioner Association has any other cause of action and according to the petitioner, the dispute as such is not settled, it will be open to the petitioner to take appropriate proceedings in accordance with law either by way of filing civil suit and any other proceedings as deemed fit. 8. The learned counsel for the petitioner submitted that the 6 earlier writ petition was not decided on merits and therefore, fresh proceedings are not barred by res judicata. In case, any such proceedings are initiated by the petitioner’s Association, it will be open to the respondents to challenge the same on all available points in accordance with law. It is clarified that on this point, we have not expressed any opinion in any manner and as and when any fresh proceedings are initiated, the merits of the petition as well as maintainability of such petition, can be decided on its own merits and in accordance with law. 8. Subject to what is stated above, the notice of motion is disposed of with liberty to the petitioner to file substantive proceedings in accordance with law. ( A.A.SAYED, J. ) (P.B.MAJMUDAR, J.)