M/S Raviraj Cor0Poration, Thr Its ... vs The Mah State Elec Distribution ...
2017 Latest Caselaw 6457 Bom

Judgment                                                                    lpa200.09
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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       NAGPUR BENCH, NAGPUR.



                     LETTERS PATENT APPEAL NO. 200/2009
                        IN WRIT PETITION No. 46/2009.


      M/s. Raviraj Corporation,
      Tilak Road, Akola, through its  
      Partner Rajendra Radhekishan Rathi
      Aged about 50 years,  
      resident of Manik Talkies, Akola.                      ....APPELLANT.


                                    VERSUS

  1. The Maharashtra State Electricity
     Distribution Comp. Limited, O & N 
     Circle, Buldhana, through Superintending
     Engineer, Buldhana.

  2. M/s. Abdullabhai Fiddali and Sons,
     a Partnership Firm, having its Head Office
     14, Mirza Street, Mumbai,
     through its Partner, Moiz Abdullabhai, 
     resident of 5th Floor, Fiddali Mansion,
     18, Princess Street Shamaldas Gandhi
     Marg, Mumbai.                          ....              RESPONDENTS . 


                             ----------------------------------- 
                    Mr. A.J. Gilda, Advocate for the Appellant.
                 Mr. R.E. Moharir, Advocate for Respondent No.1.
                 Shri A.V. Bhide, Advocate for Respondent No.2.
                             ------------------------------------




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 Judgment                                                                            lpa200.09
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                                       CORAM  :  B. P.  DHARMADHIKARI
                                                       &   ARUN D.UPADHYE, JJ. 

DATE : AUGUST 22, 2017.

ORAL JUDGMENT. (Per B.P. Dharmadhikari, J)

Appellant, added as defendant no.2 in Special Civil Suit

No.5/1997 on 24.10.2008 by the Civil Judge, Senior Division, Khamgaon,

questioned that order in Writ Petition No. 46/2009 before the learned

Single Judge under Articles 226 and 227 of the Constitution of India. The

prayers expressly seek a writ of certiorari or any other appropriate writ in

the matter. In grounds, there is an attempt to demonstrate that against

third party, such a relief could not have been allowed and scope of Order

VIII Rule 23 of Civil Procedure Code, as amended by the Bombay High

Court, has been lost sight.

2. Writ Petition No. 46/2009, was considered on 17.04.2009 for

admission. In motion hearing, after hearing respective counsel, learned

Single Judge of this Court has found no substance in the petition and

dismissed it.

3. Shri Bhide, learned counsel appearing for the original

Judgment lpa200.09

defendant in Special Civil Suit/respondent no.2, has relied upon a judgment

of Hon'ble Supreme Court reported at (2017) 5 SCC 533 (Ram Kishan

Fauji .vrs. State of Haryana and others), to urge that petition was

essentially against an order interlocutory in nature, and hence, the petition

or then the Letters Patent Appeal is not maintainable. He further adds that

in any case, as held by the Hon'ble Supreme Court, present Letters Patent

Appeal cannot be entertained.

4. Shri Gilda, learned counsel for appellant has pointed out that

the petitioner before the learned Single Judge was not party to the suit, and

effort to implead him was being opposed by approaching this Court in writ

jurisdiction. He contends that therefore, Article 226 was rightly invoked

and prayers were rightly made.

5. In alternative and without prejudice, he also submits that if this

Court is inclined to hold that the Letters Patent Appeal is not maintainable,

as petition filed under Article 226 with prayers for appropriate writ is

required to be read and construed as one under Article 227 of the

Constitution of India only, the observations of learned Single Judge should

not be allowed to come in the way of the petitioner, if he is required to file

any appeal under Section 96 of Civil Procedure Code.

Judgment lpa200.09

6. In the light of judgment of the Hon'ble Supreme Court

mentioned supra, it is apparent that as challenge was to an order passed by

the Civil Court under Civil Procedure Code, present Letters Patent Appeal

cannot be entertained and petition before the learned Single Judge is to be

read as one under Article 227, invoking supervisory jurisdiction only.

7. In this situation, we dispose of this Letters Patent Appeal as not

maintainable. However, we also make it clear that the observations made by

the learned Single Judge in the order dated 17.04.2009 in Writ Petition

No.46/2009, shall not be used while considering the challenge raised by the

appellant in Appeal under Section 96 of the Civil Procedure Code, if any

occasion therefor arise.

8. Accordingly with this clarification, we discharge Rule. No

costs.

                           JUDGE                             JUDGE

Rgd.