Court No. - 10
Case :- MATTERS UNDER ARTICLE 227 No. - 6150 of 2019
Petitioner :- Phool Bi And Another
Respondent :- Mahboob Khan
Counsel for Petitioner :- Sushil Kumar Pandey,Akhilesh Kumar Pandey
Counsel for Respondent :- Alok Tiwari
Hon'ble Prakash Padia,J.
List has been revised. Nobody is present on behalf of petitioners though Mr. Alok Tiwari, counsel for the contesting respondent is present.
The petitioners have preferred present petition inter-alia with the following prayers :-
"i. Set aside the impugned order dated 24.07.2019 passed by the Civil Judge (JD) Pilibhit (Annexure No.7 to the petition) upon the Misc. Application 16-C of the petitioners.
ii. Grant the interim injunction to not demolish the dwelling house of the petitioner and dispossess them from the property attached therein."
It appears from perusal of the record that Original Suit No.135 of 2016 was filed by one Baldev Singh in the court of Civil Judge (S.D.) Pilibhit. An application for grant of interim injunction was also filed under Order 39 Rule 1 of C.P.C. On 24.7.2019 application for grant of interim injunction was rejected by the trial court on the ground that injunction could not be granted without hearing the other side. Aggrieved against the aforesaid, petitioners have preferred present petition.
It is argued by Sri Alok Tiwari, counsel for the respondent that the present petition is not at all maintainable specially in view of the fact that against the order impugned remedy lies to the petitioners to prefer statutory appeal as provided under Sub-clause (r) of Rule 1 of Order 43 of the Code of Civil Procedure.
Very recently the Hon'ble Apex Court in the case of Virudhunagar Hindu Nadargal Dharma Paribalana Sabai and others Vs. Tuticorin Educational Society and others reported in (2019) 9 SCC 538 has held that the courts should always bear in mind a distinction between (i) cases where such alternative remedy is available before civil courts in terms of the provisions of Code of Civil procedure and (ii) cases where such alternative remedy is available under special enactments and/or statutory Rules and the fora provided therein happen to be quasi-judicial authorities and tribunals. In respect of cases falling under the first category, which may involve suits and other proceedings before civil courts, the availability of an appellate remedy in terms of the provisions of CPC, may have to be construed as a near total bar.
The paragraphs 12 and 13 of the aforesaid judgement are quoted hereinbelow :-
"12. But courts should always bear in mind a distinction between (i) cases where such alternative remedy is available before civil courts in terms of the provisions of Code of Civil procedure and (ii) cases where such alternative remedy is available under special enactments and/or statutory Rules and the fora provided therein happen to be quasi-judicial authorities and tribunals. In respect of cases falling under the first category, which may involve suits and other proceedings before civil courts, the availability of an appellate remedy in terms of the provisions of CPC, may have to be construed as a near total bar. Otherwise, there is a danger that someone may challenge in a revision Under Article 227, even a decree passed in a suit, on the same grounds on which the Respondents 1 and 2 invoked the jurisdiction of the High Court. This is why, a 3 member Bench of this Court, while overruling the decision in Surya Dev Rai v. Ram Chander Rai (2003) 6 SCC 675, pointed out in Radhey Shyam v. Chhabi Nath (2015) 5 SCC 423 that "orders of civil court stand on different footing from the orders of authorities or Tribunals or courts other than judicial/civil courts.
13. Therefore wherever the proceedings are under the Code of Civil Procedure and the forum is the civil court, the availability of a remedy under the CPC, will deter the High Court, not merely as a measure of self imposed restriction, but as a matter of discipline and prudence, from exercising its power of superintendence under the Constitution. Hence, the High Court ought not to have entertained the revision Under Article 227 especially in a case where a specific remedy of appeal is provided under the Code of Civil Procedure itself."
In view of the same, no relief could be granted to the petitioners in so far as the present petition is concerned.
The petition is devoid of merit and is accordingly dismissed.
Order Date :- 18.2.2021 Pramod Tripathi