1 jpc/- IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 776 OF 2009 IN WRIT PETITION NO. 1445 OF 2009 Shri Sushil Subhash Shah .. Petitioner Versus Shri Girish Jawerchand Oswal and others .. Respondents Shri N. V. Bandiwadekar for the petitioner Shri S. M. Oak i/b Shri Sagar Joshi for Respondents 1 and 3 Shri A.P. Vanarse for Respondents 3 and 4 CORAM: MRS. MRIDULA BHATKAR, J. DATED: 12th June, 2009 P. C. 1. Heard. 2. All the parties are present in the matter. This Civil Application is taken out by the petitioner for recall of the order passed by this Court on 13.2.2009 . 3. Learned counsel for the petitioner submits that on 13th February 2009, preliminary objection was raised by the respondents on the point of maintainability. The petitioner wants to challenge the order passed by the Lower Appellate Court rejecting the application for injunction preferred under Order 39 of the Civil Procedure Code. Learned counsel submits that when this objection was 2 raised, he also thought on the same line and sought permission to withdraw the writ petition with liberty to file appeal under Order 43 of the Civil Procedure Code. Learned Counsel further submits that the impugned order was passed in the first session of the court sitting and as he realised mistake and found that the order of lower Appellate Court can be challenged in Appeal so also in the writ petition and as such the writ petition is maintainable. In the second sitting of the Court, he approached the same Bench and requested to recall the order. The Bench directed that the respondents are to be given notice. The learned counsel submits that the he could not give notice on the same day to the the learned counsels of the respondents. He made simple application on next day i.e. on 16th February, 20009 (14th and 15th February was weekend). On that day the this Court passed the following order 1. Not on board. Upon mentioning taken on board. “ 2. Liberty to take out appropriate proceedings for recall of the order dated 13th February, 2009, if so advised.” 4. Pursuant to the said order dated 16th February, 2009 the Civil Application is taken out by the petitioner. The learned counsels for all the respondents are present. They concede that the writ petition is maintainable. Hence, in all fairness, the application is allowed and the Matter is recalled. 5. Petition be listed for admission on 26th June, 2009. (MRIDULA BHATKAR, J.)