Bandhan Munda v. Koka Munda

Defendants/Respondents

Bablu Munda 8. Gorta Munda @ Davit Bhut Kumar .... .... .... Plaintiff Nos.1&2/Proforma Respondents ------ Coram: HON’BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA For the Petitioner For the State : Mr. Rajesh Bhushan, Advocate : Mr. Krishna Kumar Bhatt, AC to SC-I ------ Order No.04 Dated- 22.08.2023 ------ Heard, learned counsel for the plaintiffs/petitioners.

Instant petition under Article 227 of Constitution of India is directed against the order dated 24.11.2022 passed by Sri Shradha Bhushan, learned Additional Munsif XXV, Ranchi passed in Misc. Civil Application No.55 of 2022 arising out of O.S. No.34 of 2005, whereby and whereunder on the application of defendants under order 39, Rule 1 & 2 of CPC, learned court below has passed order maintaining status quo by both parties restraining them from disposal of the property without permission of the court

The suit was filed by the plaintiff No.4/petitioner before the learned Munsif, Ranchi with following reliefs:- a. A decree may be passed in favour of the plaintiffs that they are the absolute owner of Khata No.128 and defendants are fictitious person of the family of the plaintiff. b. c. other relief/reliefs, the plaintiff/petitioner are entitled to. costs of the suit.

Learned counsel for the plaintiff /petitioner has submitted that the impugned order is not sustainable and totally against the case of plaintiff/petitioner and passed at the stage of evidence of defendants. Learned counsel for the petitioner has further submitted that no appeal has been preferred under order 43 Rule 1(r) of CPC against the impugned order before the learned Principal District Judge.

In this connection, it appears pertinent to quote the recent judgment of Hon’ble Apex Court passed in the case of Mohamed Ali Vs. Jaya & Ors. reported in 2022 10 SCC 477 dated 11.07.2022 wherein the Hon’ble Apex Court has held as under:-

wherever proceedings are under the Code of Civil Procedure and the forum is the civil court, the availability of a remedy under code of Civil Procedure 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. Therefore, present petition under article 227 of Constitution cannot be entertained in view of the specific statutory provision of appeal provided in the CPC.

In view of the above, an order passed under order 39 Rule 1 and 2 of CPC is amenable to appeal under order 43 rule 1(r) of CPC, hence, present petition under Article 227 of Constitution of India cannot be entertained which stands dismissed without requirement of notice to the respondents.

7. However, petitioner/plaintiff is directed to seek remedy before the proper forum in accordance with law. Pappu/ (Pradeep Kumar Srivastava, J.)