RP/170/10 1 SSK IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION REVIEW PETITION NO.170 OF 2010 IN WRIT PETITION NO. 10799 OF 2004 Smt. Shalan Valmik Kakade & Ors. ....Petitioners Versus Shri Trishul Carriers & Ors. ...Respondents Mr. M. B. Kotak, Advocate for the petitioners. Mr. K. W. Vitonde, Advocate for respondent no.2. Mr. A. I. Patel, AGP for respondent no.3. CORAM : RANJIT MORE, J. DATED : 26TH NOVEMBER, 2010. P.C.: Heard learned counsel for the respective parties. 2. The order impugned in the above writ petition was passed in the year 2004. In view of the judgment of a Full Bench in the case of Divisional Controller, Maharashtra State Road Transport Corporation Versus Bapu Omkar Chaudhari reported in 2004 ACJ 35, the petitioners preferred a writ petition. During the pendency of the aforesaid writ petition, the Full Bench judgment in Bapu Omkar Chaudhari’ case (supra) was overruled by the Apex Court in the case of Yallwwa & Ors. Versus National Insurance Co. Ltd. & Anr. reported in 2007 ACJ 1934. In view of the Apex Court judgment, a first appeal will be maintainable. When the writ petition was placed for admission on 15th April, 2010, Mr. Kotak, learned counsel, sought leave to withdraw the writ petition with liberty to file RP/170/10 2 SSK first appeal. That liberty was granted and the above writ petition was disposed of, as withdrawn. The present review petition is filed in the aforesaid writ petition. Mr. Kotak, learned counsel, contends that the petitioners cannot be punished for no fault of theirs by directing them to challenge the impugned order by filing first appeal. He further submits that when the petition was filed, it was perfectly maintainable in view of the decision of the Full Bench in Bapu Omkar Chaudhari’ case (supra) and therefore, the petitioners cannot be compelled to challenge the order impugned in the writ petition by filing first appeal. 3. In view of the Apex Court judgment, first appeal against the order impugned is maintainable. When alternative remedy of first appeal is available, the writ petition cannot be entertained. However, in the interest of justice, the petitioners can be allowed to convert the aforesaid writ petition into first appeal. In the above circumstances, the review petition is disposed of, by passing the following order: 1. The order dated 15th April, 2010 is modified and the petitioners are permitted to convert the above writ petition into first appeal. Amendment be carried out within three weeks from today. (RANJIT MORE, J.)