1 Lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.780 OF 2010 WITH REVIEW PETITION NO.56 OF 2010 IN WRIT PETITION NO. 4616 OF 2009 Pune Municipal Corporation, Pune and anr. : Applicants. versus The Club of Maharashtra Ltd. Pune : Respondent. Mr. A A Kumbhakoni with Mr. A P Kulkarni for the Applicants. Mr. A V Anturkar with Mr. S B Deshmukh for the Respondent. CORAM : A M KHANWILKAR & R M SAVANT, JJ DATED : 31st March 2010 P.C. 1. Review Petition No.56 of 2010 takes exception to the decision of this Court dated 14th August 2009 in Writ Petition No. 4616 of 2009. Amongst others, the grievance is that the basis on which the said judgment has been pronounced is factually incorrect. It is the case of the Applicants that the fact that the land in question was shown as reserved for Playground in the Development Plan was not specifically stated in the Writ Petition. That fact has been stated for the first time in the rejoinder affidavit 2 which was tendered across the bar when the matter was taken up for admission. As a matter of fact, according to the Applicants, the land has been shown in the Development Plan as Nehru Stadium which is the existing use of the land and not as Playground as such. The Review Petition is filed on 15th October 2009. The Civil Application has been filed on 27th February 2010 praying for permission to amend the Review Petition so as to urge further facts and grounds. 2. Counsel appearing for the Respondent-original Writ Petitioner has opposed the Application as well as the Review Petition. According to him, the amendment to Review Petition, if granted at this stage, it would result in entertaining the ground of challenge in a Review Petition after limitation period has already expired and without offering any explanation for not raising the said contention in the first place in the Review Petition itself. Besides, the ground now pressed into service can by no standards be the basis to review the decision of this Court. For, it is not ascribable to the mistake of the Court. 3 3. After considering the submissions, in our opinion, in the interest of justice, this Application as well as the Review Petition deserves to be allowed. We say so because, the additional fact and the ground stated in the proposed amendment is essential to further the ground already taken in the Review Petition. Indeed, the ground in the Review Petition does not specifically mention the fact that the factual position on the basis of which the Court proceeded to decide the matter is incorrect. Nevertheless, that fact has been brought on record by way of additional averment and ground. The argument of the Respondent that allowing the amendment would result in entertaining the challenge which is barred by limitation does not commend to us. If the amendment is allowed, the same will stand incorporated in the Review Petition which was filed on 15th October 2009. In any case, as aforesaid, in the interest of justice, the prayer for review deserves to be granted as it is obvious that the basis on which the Court proceeded to decide the matter was essentially on account of the representation made in the rejoinder affidavit by the writ petitioner, which was not the case specifically stated in the writ 4 petition. Besides, there is no dispute that the decision under review was passed when the writ petition was taken for final disposal at the admission stage itself. Indeed, it was possible for the counsel for the Corporation to ask for time to ascertain the factual position, as the new fact was stated in the rejoinder affidavit tendered across the bar on the same day. However, since the Applicant is a public body and considering the fact that factual basis on which the court proceeded to decide the controversy is incorrect, the appropriate course to do substantial justice is to recall the order and examine the grievance of the Petitioner in the writ petition on its own merits. 4. Counsel for the Respondent submits that the fact that land has been shown as Nehru Stadium in the Development Plan would make no difference to the conclusion that has been reached in the decision under review. That aspect however would be relevant to examine the merits of the controversy in Writ Petition No.4616 of 2009. All aspects in that regard will be considered on its own merits. 5 5. Accordingly the Review Petition as well as the Civil Application are allowed. 6. Writ Petition No.4616 of 2009 stands restored to file to its original number and to be placed for admission on 19th April 2010. 7. Counsel for the writ petitioner submits that since the writ petition is restored in terms of this order, the Petitioner be permitted to amend the writ petition so as to take specific grounds which the Petitioner would like to agitate, keeping in mind, the stand now taken by the Respondent-Corporation. On the oral request of the counsel for the Petitioner, leave to amend the writ petition is granted. Amendment be carried out within one week from today. It will be open for the Corporation to file reply to the proposed amendment within one week thereafter. List the matter on 19th April 2010. (R M SAVANT, J.) (A M KHANWILKAR, J)