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2014 DIGILAW 460 (PAT)

Nootan Mishra v. State of Bihar

2014-04-16

MUNGESHWAR SAHOO

body2014
ORDER Heard learned senior counsel Mr. Rajeev Kumar Verma for the petitioners, learned counsel Dr. Manoj Kumar for the respondent no.7, learned counsel Mr. Manish Kumar for the respondent no.4 and learned A.C. to A.A.G.2 for the State. 2. This application under Article 227 of the Constitution of India has been filed by the petitioners against the order dated 22.06.2010 passed by the learned Subordinate Judge-VI, Bhagalpur in Miscellaneous Case No.11 of 2000. 3. It appears that Partition Suit No.186 of 1984 was filed by the plaintiff-respondent claiming ½ share in the property. This suit was decreed on the basis of compromise on 31.07.1996. After compromise decree some of the defendants filed Miscellaneous Case No.13 of 1996 under Order XXIII Rule 3 of the Code of Civil Procedure for setting aside the compromise decree on the ground that the compromise decree has been obtained fraudulently. In the said miscellaneous case injunction application was filed which was rejected by the court concerned. Against the said order rejecting injunction application, civil revision was filed before the High Court being Civil Revision No.935 of 1999. In the said civil revision application on 01.07.1999 interim order was passed directing the parties to maintain status quo. Ultimately the said civil revision application was disposed of by terms of order dated 16.10.2000 directing again the parties to maintain status quo during the pendency of the miscellaneous case. The said miscellaneous case was disposed of by the court below on 07.06.2002 whereby the miscellaneous case was dismissed. Against the said miscellaneous case, civil revision was filed before the High Court being Civil Revision No.945 of 2002 which was allowed by this court but the Hon’ble Supreme Court in Civil Appeal No.2728 of 2006 and other analogous cases, set aside the order passed by this court in civil revision and upheld the order passed by the trial court dismissing the miscellaneous case. 4. The present petitioners filed Miscellaneous Case No.11 of 2000 under Order 39 Rule 2A of the Code of Civil Procedure alleging that the status quo order passed by this court in Civil Revision No.935 of 1999 has been violated. By the impugned order the court below considered the evidences produced by the parties and then recorded a clear finding that the order of status quo passed by this court in Civil Revision No.935 of 1999 on 01.07.1999 and 16.10.2000 has not been violated. By the impugned order the court below considered the evidences produced by the parties and then recorded a clear finding that the order of status quo passed by this court in Civil Revision No.935 of 1999 on 01.07.1999 and 16.10.2000 has not been violated. In view of the above facts, now it becomes clear that the court below has recorded the finding on the basis of the evidences. Moreover, this miscellaneous case itself arises out of an application filed under Order 39 Rule 2A of the Code of Civil Procedure. 5. This impugned order has been passed on the application under Order 39 Rule 2A of the Code of Civil Procedure, therefore, the impugned order is appealable under Order 43 Rule 1 (r) of the Code of Civil Procedure. Therefore, the impugned order cannot be interfered with in exercise of supervisory jurisdiction under Article 227 of the Constitution of India. 6. So far the interlocutory application filed by the petitioners, i.e. I.A. No.2098 of 2014 is concerned, this application has been filed by the petitioners for hearing this writ application along with First Appeal No.42 of 2013. It may be mentioned here that since this application under Article 227 itself is not maintainable, there is no question of tagging this writ application with first appeal arises. Accordingly, this interlocutory application is rejected. 7. It appears that in the provision of law, Article 226 of the Constitution of India has been added. The Hon’ble Supreme Court in the case of Shalini Shyam Shetty and another Vs. Rajendra Shankar Patil, reported in (2010) 8 Supreme Court Cases 329 has held that now it becomes growing trend amongst several High Courts to entertain writ petitions in cases of property disputes like partition suits, executions of a decree, landlord-tenant dispute and also in a case of money decree. The Hon’ble Supreme Court further held that the exercise of jurisdiction under Article 227 of the Constitution of India is entirely discretionary and no person can claim it as a matter of right. So far Article 226 is concerned, the Hon’ble Supreme Court as stated above has held that the writ petition is a remedy in public law which may be filed by any person but the main respondent should be either the Government, Governmental agencies or State or instrumentalities of the State within the meaning of Article 12. So far Article 226 is concerned, the Hon’ble Supreme Court as stated above has held that the writ petition is a remedy in public law which may be filed by any person but the main respondent should be either the Government, Governmental agencies or State or instrumentalities of the State within the meaning of Article 12. In the present case the allegation of violation is against a private individual and, therefore, the relief also cannot be granted under Article 226 of the Constitution of India. 8. Accordingly, this writ application is dismissed. ?