1 ca 4875.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO. 4875 OF 2011 IN REVIEW PETITION STAMP NO. 9007 OF 2011 IN WRIT PETITION NO. 3869 OF 2007 1. Sk. Rasul Sk. Haidar Musalman Deceased by his heir Shamshadbi W/o Shaikh Rasul and others .. Applicants Versus Sirajmiya Vajirmiya Deshamukh .. Respondent Shri B. R. Warma, Advocate for Applicants. Shri U. S. Malte, Advocate for the Respondent. CORAM : S. V. GANGAPURWALA, J. DATE : 16TH SEPTEMBER, 2011. PER COURT : . This is an application for condonation of delay of 1313 days in filing review petition seeking review of the order passed by the learned Single Judge of this Court (Coram : S. B. Deshmukh, J.) dated 16.07.2007 in Writ Petition No. 3869 of 2007. 2 ca 4875.11 2. Shri Warma, the learned counsel for applicants submits that the applicants could not file the application for review due to their precarious economic condition. The learned counsel submits that the remedy of this Court under Article 227 was invoked under misconception of law in as much as against the order impugned in the writ petition an appeal was provided. This has also been considered by the Division Bench of this Court in Letters Patent Appeal while recording the order dated 16th August, 2007 in L. P. A. No. 116/2007 and taking into account the said aspect, the petitioners had withdrawn the letters patent appeal on 03rd March, 2009 with liberty to avail the remedy of review. 3. The learned counsel contends that the petitioners are the tenants in the premises and they are being wrongly evicted. In view of the fact that jurisdiction of this Court under Article 227 was wrongly invoked, the petitioners be allowed to withdraw the writ petition with liberty to avail the remedy of appeal before the appellate forum. The learned counsel contends that even a misconception of law can be a ground of review. According to the learned counsel, when the order is without jurisdiction, then in such circumstances, the petitioners/applicants may not be 3 ca 4875.11 deprived of the legitimate remedy of appeal. The learned counsel submits that the appeal is substantive right of the party. 4. The writ petition has been adjudicated by the learned Single Judge of this Court vide its order dated 16.07.2007. The same has been adjudicated on merits, taking into consideration arguments advanced by the learned counsel for the petitioners/applicants. The arguments were dealt by the learned Single Judge while dismissing the said writ petition. Now once the writ petition has been dismissed on merits, it would not be appropriate to allow the petitioners to withdraw the writ petition. The proceedings can be allowed to be withdrawn only if it suffers from formal defects as laid down under Order 23 of the Code of Civil Procedure. Apart from the submissions that the jurisdiction of this Court was wrongly invoked, no ground of formal defect is made out. By dismissal of the writ petition on merits the rights are created in the party. In such circumstances, the request of the learned counsel for the petitioners/applicants for withdrawal of writ petition cannot be considered. Even otherwise there is huge delay in filing the present review petition. The only reason stated is of economic condition. The fact remains that the letters patent appeal was 4 ca 4875.11 withdrawn seeking liberty to file a review petition and the review petition is filed after a long slumber of three and half years. In view of that the petition for review and application for condonation of delay are rejected. [ S. V. GANGAPURWALA, J. ] bsb/Sept. 11