Abdul Razzaque Khan vs Anupam Tiru & Another
2021 Latest Caselaw 4183 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
               (Civil Writ Jurisdiction)
              W.P. (C) No. 2437 of 2008
                      ........

Abdul Razzaque Khan                 ....   ..... Petitioner
                           Versus
Anupam Tiru & Another               ....   ..... Respondents

CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO
                             ............
For the Petitioner            : Mr. Rohit Roy, Advocate.
For the Respondents           : Mr. Amit Kumar Das, Advocate.
                                      ........
24/16.11.2021.

Heard, learned counsel for the petitioner, Mr. Rohit Roy and learned counsel for the respondents, Mr. Amit Kumar Das.

The petitioner, being the plaintiff, is aggrieved with the order dated 11.04.2008 passed by learned Sub-Judge-I, Ranchi in Title Suit No. 84/2008, whereby the Title suit filed by the plaintiff has been rejected at the admission stage itself considering the agreement between the parties to be barred under statutory bar as plaintiff is not a tribal and whereas defendants are tribals.

Learned counsel for the petitioner, Mr. Rohit Roy has submitted that the learned Sub-Judge has wrongly dismissed the suit at the admission stage itself, as the learned Sub-Judge before passing final order ought to have framed issues and recorded evidence, as such, plaintiff has preferred this writ petition.

Learned counsel for the petitioner has relied upon the judgment passed by the High Court of Judicature at Patna in the case of Ramjoy Rewani Vs. Kusum Mahatani and Ors. reported in AIR 1974 Pat 200 and placed reliance upon para-12 of the judgment, which is profitably quoted hereunder:-

12. In view of the above discussions the agreement in question is not opposed to the public policy and the Court could enforce the same. The only bar created for the transfer of the raiyati interest in the holding is that it must have a prior sanction of the Deputy Commissioner, In my opinion, that is simply a procedure for a valid transfer, and that procedure can validly be followed for the purpose of completing this agreement. A Bench of this Court in Somra Uraon v. Mt. Somari Urain. 1964 BLJR 227 has considered the scope of the restrictions of Section 46 of the Act. Their Lordships compared the language of Section 46 of the Act

with the language of Section 27 of Regulation III of 1872 applicable to Santhal Parganas and came to the conclusion that whereas Section 27 of the Regulation imposes an absolute bar upon the alienation of land in Santhal Parganas, there is no absolute bar or interdictions on the alienation of holding in Chota Nagpur under the provisions of the Act.

Learned counsel for the petitioner has further submitted that so far the court below has committed jurisdictional error in passing the impugned order, as such, writ is maintainable under Article 227 of the Constitution of India as the High Court has a superintendence power over the courts below.

Learned counsel for the petitioner has further submitted that since the petitioner has an alternative remedy to come before this Court, as such, the writ petition has been filed, which has been entertained by this Court, as such, this Court may consider the same, in view of the judgment passed by Division Bench of this Court in the case of M/s Shree Bajrang Hard Coke Mfg. Corpn. Vs. Ramesh Prasad reported in 2002 (3) JLJR 241, wherein it has been held that "Having admitted the Writ Application, it would not at all be fair after so many years to reject this Writ Application on the ground of existence of an alternative remedy."

Learned counsel for the petitioner has thus submitted that this Court may exercise the same.

Learned counsel for the respondents, Mr. Amit Kumar Das has submitted that pursuant to dismissal of the suit, the plaintiff / petitioner ought to have preferred an appeal under Code of Civil Procedure, 1908 before the competent court of law in view of the judgment passed by the Apex Court in the case of Virudhunagar Hindu Nadargal Dharma Paribalana Sabai and others Vs. Tuticorin Educational Society and others, reported in 2019 (9) SCC

538. Learned counsel for the respondents has further submitted that the Apex Court has considered such issue in para-13 of the aforesaid judgment, which may profitably be quoted hereunder:-

13. But courts should always bear in mind a distinction between

(i) cases where such alternative remedy is available before Civil

Courts in terms of the provisions of Code of Civil procedure and

(ii) cases where such alternative remedy is available under special enactments and/or statutory rules and the fora provided therein happen to be quasi-judicial authorities and tribunals. In respect of cases falling under the first category, which may involve suits and other proceedings before civil courts, the availability of an appellate remedy in terms of the provisions of CPC, may have to be construed as a near total bar. Otherwise, there is a danger that someone may challenge in a revision under Article 227, even a decree passed in a suit, on the same grounds on which the respondents 1 and 2 invoked the jurisdiction of the High court. This is why, a 3 member Bench of this court, while overruling the decision in Surya Dev Rai vs. Ram Chander Rai [(2003) 6 SCC 675], pointed out in Radhey Shyam Vs. Chhabi Nath [(2015) 5 SCC 423] that "orders of civil court stand on different footing from the orders of authorities or Tribunals or courts other than judicial/civil courts.

Learned counsel for the respondents has further submitted that pursuant to the order dated 16.01.2018 passed by the Coordinate Bench of this Court, the lower court record has been received and available on record and from perusal of records, it appears that the suit has been dismissed on 11.04.2008 and decree has been signed on 22.04.2008 and as such, under the provisions of Code of Civil Procedure, plaintiff / petitioner has legal remedy available under the law.

Learned counsel for the respondents has thus submitted that subsequent to this suit, plaintiff / petitioner has preferred a criminal prosecution against the defendants / respondents vide Complaint Case No. 525/2008, in which cognizance has been taken. The said order of cognizance and quashing of the entire proceeding has been assailed by the respondents before this Court vide Cr.M.P. No. 880/2009 and same was quashed in view of the compromise between the parties, after the defendants/ respondents being the petitioner therein has already returned the entire amount, as mentioned in the agreement, through Cheque Nos. 816492 & 816493 and on the basis of the same, order dated 11.04.2016 has been passed by the Coordinate Bench of this Court with riding clause that "However, it

is made clear that the compromise arrived in this Court will not prejudice either of the party in civil cases pending in between them."

Learned counsel for the respondents / defendants has thus submitted that since the decree has been prepared and it is proper for the plaintiff / petitioner to seek remedy of appeal under Code of Civil Procedure and the writ petition cannot be maintainable even if this Court has initially entertained the same, in view of the judgment passed by the Apex Court in the case of Virudhunagar Hindu Nadargal Dharma Paribalana Sabai (Supra).

After hearing learned counsel for the parties and looking into facts and circumstances of the case, it appears that the writ petition has been filed in the year 2008 and it was entertained by the Coordinate Bench. However, the writ petition was filed under Article 227 of the Constitution of India against the order dated 16.04.2008 passed by learned Sub-Judge-I, Ranchi in Title Suit No. 84/2008. The decree has been prepared on 11.04.2008, which was signed on 22.04.2008, as such, in view of the judgment passed by the Apex Court in the case of Virudhunagar Hindu Nadargal Dharma Paribalana Sabai (Supra), this Court is of the opinion that when an order is being passed by the Civil Court in terms of provisions of Code of Civil Procedure, it would be proper for this Court to not entertain the application under the alternative remedy available under Article 227 of the Constitution of India, otherwise, there shall be chance of conflicting order, since the decree has been prepared in the suit, may be on perverse ground, that is to be assailed by the plaintiff / petitioner before the competent court of law under Civil jurisdiction i.e. appellate court under Section 96 of the Code of Civil Procedure.

Under the aforesaid circumstances, this Court is not inclined to entertain this application on an alternative remedy under Article 227 of the Constitution of India.

Accordingly, this writ application is hereby dismissed with liberty to the plaintiff / petitioner to seek alternative remedy available under the law before the court of competent authority.

I.A. No. 9164/2017 is hereby closed.

Let the entire Case Record of Title Suit No. 84 of 2008 be sent back.

(Kailash Prasad Deo, J.) Sunil/-