Research › Search › Judgment

Patna High Court · body

2011 DIGILAW 1643 (PAT)

Ram Chandra Mukhia v. State of Bihar

2011-08-04

body2011
ORDER 1. Heard the learned counsel for the petitioner. 2. This writ application under Article 226 of the Constitution of India has been filed against the ex-parte order dated 13.01.2011 passed by Subordinate Judge I, Benipur, Darbhanga in title suit no.163 of 2010 and also against the order dated 09.02.2011 passed in Misc. Case No.3 of 2011 by the same Court. 3. It appears that title suit no.163 of 2010 was filed by respondent no.9, Mostt. Janki Devi against Ramlakhan Mukhia and this petitioner praying for the following reliefs: (a) That on consideration of facts and circumstances stated above the Court be pleased to declare the fishery right of the plaintiff till 13.05.2011 over the suit land. (b) The Court be pleased to restrain the defendants from interfering in the legal fishery right of plaintiff over the tank detailed in Schedule-1 by himself or through his agency by use of force or show of force and or in any manner whatsoever. (c) That any other relief or reliefs for which the plaintiff is deemed entitled in the circumstances of the case be passed in favour of the plaintiff. (d) The cost of the suit be given to the plaintiff against the defendant. 4. After the suit, the ex-parte order has been passed on 13.01.2011 whereby the learned Court below decreed the suit after considering the materials available on record and restrained the defendants from interfering in the legal fishery right of the plaintiff over the Schedule-1 land either himself or through agency. The petitioner filed Misc. Case No.4 of 2011 under Order 9 Rule 13 of the C.P.C. for setting aside the ex-parte order. Thereafter it appears that when the ex-parte order was being violated by the petitioner, the plaintiff-respondent filed Misc. Case No.3 of 2011 wherein notices to show cause has been issued to the petitioner. 5. The petitioner has filed this writ application under Article 226 of the Constitution of India challenging the ex-parte order passed in the title suit and also the order whereby show cause notice has been issued to the petitioner in Misc. Case No.3 of 2011. 6. From the above facts and circumstances of the case in the suit, the private rights were claimed by the parties with respect to the suit property which has been determined by the Civil Court. 7. Case No.3 of 2011. 6. From the above facts and circumstances of the case in the suit, the private rights were claimed by the parties with respect to the suit property which has been determined by the Civil Court. 7. In a decision reported in (2009) 5 S.C.C. 616 , the Hon'ble Apex Court has held that the High Court in exercise of jurisdiction under Article 226 of the Constitution of India has no jurisdiction to interfere with the judicial order passed by a Court of competent jurisdiction in a property suit parties to which were all private individuals. It appears that the Hon'ble Supreme Court in the said decisions considered all these judgment of the Supreme Court earlier decided on this point right from 1954 Supreme Court 440, 1957 Supreme Court 529, 1969(2) S.C.C. 782 , A.I.R. 1967 Supreme Court 1. The decision rendered by the Hon'ble Supreme Court in the case of Suryadev Rai in (2003) 6 Supreme Court 675 has been doubted regarding maintainability of writ application under Article 226 of the Constitution of India. 8. In the present case, the rights of the parties have been determined by the Court of competent jurisdiction. The petitioner admittedly has filed an application under Order 9 Rule 13 C.P.C. for setting aside ex-parte order. Moreover, the petitioner could have filed appeal or revision as the case may be against the ex-parte order but instead of filing the said applications, he has filed this writ application under Article 226 of the Constitution of India. It appears that the petitioner in this writ application has added the officials and State of Bihar as respondent no.1 to 8 who are not even party to the suit. 9. In view of the above settled principles of law, in my opinion, this writ application is not maintainable under Article 226 of the Constitution of India and this Court cannot exercise extraordinary writ jurisdiction under Article 226 of the Constitution of India to interfere the judicial order passed in a Civil Suit by a Court of competent jurisdiction wherein the parties are only private individuals. 10. Therefore, this writ application is dismissed and the interim order is vacated.