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2014 DIGILAW 1102 (JHR)

Suresh Choudhary v. Jitendra Jha

2014-11-12

SHREE CHANDRASHEKHAR

body2014
ORDER Aggrieved by order dated 21.02.2011 passed by the Additional District and Sessions Judge, F.T.C.II in Title Appeal No.47 of 2009, the petitioner has preferred this writ petition under Article 227 of the Constitution of India. 2. Mr. V. Shivnath, the learned senior counsel appearing for the respondents raises a preliminary objection as to maintainability of the writ petition on the ground that under Order 43(1)(u) CPC, against the order impugned in the present proceeding, a Misc. Appeal would lie and therefore, the present writ petition filed under Article 227 of the Constitution of India is not maintainable. The learned senior counsel relies on a decision in “Shalini Shyam Shetty & Anr. Vs. Rajendra Shankar Patil”, reported in (2010) 8 SCC 329 , which was affirmed in “Sameer Suresh Gupta Vs. Rahul Kumar Agarwal”, reported in (2013) 9 SCC 374 and submits that there is an inherent restriction in exercise of jurisdiction under Article 227 of the Constitution of India, by the High Court. In a case where a statutory appeal would lie, the High Court exercising its power under Article 227 of the Constitution of India cannot entertain the writ petition and decide the matter on merits. 3. The learned counsel appearing for the petitioner submits that there are several judgments of Hon'ble Patna High Court in which, a writ petition filed under Article 227 of the Constitution of India has been permitted to be converted into one as Misc. Appeal and vice versa. He relies on a decision in “Ajay Bansal Vs. Anup Mehta & Ors.”, reported in AIR 2007 SC 909 and submits that the Hon'ble Supreme Court in the said case permitted the appellant to convert the writ petition into an appeal. The facts of the present case are even better than the case of “Ajay Bansal” because in the present case, there is no decree of the trial court and therefore, the writ petition may be converted into a Misc. Appeal. 4. Mr. V. Shivnath, the learned senior counsel appearing for the respondents submits that there is a statutory period of limitation under Article 116 of the Limitation Act which provides a period of 90 days for filing Misc. Appeal against impugned order passed by the Appellate Court. Appeal. 4. Mr. V. Shivnath, the learned senior counsel appearing for the respondents submits that there is a statutory period of limitation under Article 116 of the Limitation Act which provides a period of 90 days for filing Misc. Appeal against impugned order passed by the Appellate Court. He therefore submits that, it is not open to the High Court to convert a writ petition filed under Article 227 of the Constitution of India into a Misc. Appeal. 5. I have carefully considered the rival contentions raised by the counsel appearing for the parties and perused the documents on record. 6. The impugned order in Title Appeal No. 47 of 2009 was passed on 21.02.2011 and the present writ petition was filed on 10.06.2011. The provision under Order 43(1)(u) CPC, provides that a Misc. Appeal would lie against the order passed in Title Appeal No. 47 of 2009. Article 116 of the Limitation Act provides a limitation of 90 days for filing appeal against an order passed by Appellate Court. Article 116 of the Limitation Act is extracted below: (a) to a High Court from any decree or order Ninety days The date of the decree or order 7. This Court while hearing the writ petition under Article 227 of the Constitution of India cannot condone the delay, which may occur, when a statutory appeal is filed. By converting the writ petition filed under Article 227 of the Constitution of India into one as a Misc. Appeal as provided under Order 43(1)(u) CPC, this Court would be condoning the delay, which would occur in filing the appeal, which would be counted from the date of the order impugned. In Ajay Bansal's case, the statement of law is stated thus: 13. “Ordinarily, an application under Article 227 of the Constitution of India would not be maintainable where an appeal lies. An appeal lay from the decree under Section 96 of the Code. When an appeal could be filed, ordinarily, an application under Article 227 of the Constitution of India would not be entertained.” 8. I find that in the peculiar facts of the case, the Hon'ble Supreme Court in Ajay Bansal's case permitted the appellant to convert the writ petition into an appeal. In the present case no application seeking permission to convert the writ petition into a Misc. I find that in the peculiar facts of the case, the Hon'ble Supreme Court in Ajay Bansal's case permitted the appellant to convert the writ petition into an appeal. In the present case no application seeking permission to convert the writ petition into a Misc. Appeal accompanied with an application under Section 5 of the Limitation Act seeking condonation of delay, has been preferred. Moreover, in view of the statutory period of limitation under Article 116 of the Limitation Act and in view of the specific provision under Order 43(1)(u) CPC, I am of the opinion that the present writ petition cannot be converted into a Misc. Appeal. 9. Accordingly, this writ petition is dismissed, as not maintainable. Petition dismissed.