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1967 DIGILAW 402 (ALL)

Bilkeshwar Dayal v. Civil Judge, Bulandshahr

1967-11-08

R.S.PATHAK

body1967
JUDGMENT R.S. Pathak, J. - The petitioner is aggrieved by the order. dated March 26, 1963 of the learned Munsif Khurja appointing a receiver and by the order dated May 30, 1963 of the learned Civil Judge, Bulandshahr dismissing the petitioner's appeal against that order. The contention of Shri K.C. Saxena, learned counsel for the petitioner, is that the orders were made in a suit for partition and that at the time when they were made consolidation proceedings had already commenced under the U.P. Consolidation of Holdings Act in respect of the groves in dispute. He urges that neither the learned Munsif nor the learned Civil Judge had any jurisdiction to take the proceedings which they did inasmuch as the proceedings were bound to be stayed by virtue of Section 5 (b) of the U.P. Consolidation of Holdings Act. Now, it appears that the petitioner had applied in revision under Section 115 of the Code of Civil Procedure against the aforesaid order of the learned Civil Judge, Bulandshahr and the same contention was also raised in that revision application. The revision application was dismissed by Verma, J. op August 1, 1963 in the view that no ground had been made out for interference. Having regard to the circumstance that a revision application was filed by the petitioner and that the same contention was raised in that proceeding and that revision application has now been disposed of, in my judgment it is not open to the petitioner to pray for relief by a petition for certiorari under Article 226 of the Constitution. The petitioner availed of the remedy open to him under Section 115 of the Code of Civil Procedure. The revision application was not dismissed on the ground that it was not maintainable. On the contrary, Verma, J. proceeded on the basis that it was maintainable but he considered that in the interests of justice he should not interfere in the case. In my opinion, a court exercising jurisdiction under Article 226 of the Constitution should be reluctant to interfere in a case where the same relief has already been applied for under another jurisdiction exercised by it and that relief has been refused. In my opinion, a court exercising jurisdiction under Article 226 of the Constitution should be reluctant to interfere in a case where the same relief has already been applied for under another jurisdiction exercised by it and that relief has been refused. To permit a petitioner to apply for relief under the extraordinary jurisdiction of this Court under Article 226 of the Constitution would be to permit the possibility of a confusion between parallel jurisdictions and the possibility of conflicting orders. That will be against the fundamental principles governing the jurisdiction of courts and against declared public policy. Learned counsel has relied upon certain observations of G.C. Maihur, J. in Writ No. 3667 of 1962 where, he says, a similar objection was considered by that learned Judge and was repelled. I have examined the judgment in that case and it seems to me that the facts are clearly distinguishable. G.C. Mathur, J. pointed out that the question raised before him was whether a manifest error of law had been committed by the inferior authority in that case. A question of jurisdiction was not raised before him. He observed: "The learned Judge did not, and indeed could not in a revision under Section 115, C.P.C. go into the question whether there was any manifest error of law apparent on the face of the order of the learned Munsif. He did not affirm or approve ,of the order on merits." It was on this ground that he overruled the preliminary objection raised before him. Reference may also be made to the decision of Jagdish Sahai, J. in Shri Krishan v. Sri K.S. Gandhi, Civil Misc. Writ No. 3661 of 1961, Decided on July 26, 1962. I am clearly of the view that in the circumstances of this case the petitioner should not be granted relief against the impugned orders. The petition fails and is dismissed As no one appears in opposition to this petition, there is no order as to costs.