Case Note & Summary
The petitioner, Anand Jaiswal, filed a civil suit seeking a declaration of settled legal possession and an injunction against the respondent, M/s. Shewalkar Developers Ltd., in respect of suit property. The respondent filed an application under Order 7 Rule 11 read with Section 9A and Section 151 CPC contending the suit was barred by limitation and seeking rejection of the plaint. The petitioner filed applications under Order 39 Rules 1 and 2 CPC (Exh.37) for mandatory injunction to restore possession, and under Section 9A(2) CPC (Exh.50) for interim relief pending adjudication of the limitation issue. The trial court dismissed both applications. The petitioner challenged this composite order by way of a writ petition under Article 227 of the Constitution. The High Court examined the maintainability of the writ petition. It noted that the order on Exh.37 (under Order 39) is appealable under Order 43 Rule 1(r) CPC. The petitioner argued that the order on Exh.50 under Section 9A(2) is not appealable, but the court held that the composite order is essentially an order under Order 39, and the petitioner has an alternative remedy of appeal. The court declined to entertain the writ petition and dismissed it, leaving the petitioner to avail the remedy of appeal.
Headnote
A) Civil Procedure - Maintainability of Writ Petition - Alternative Remedy - Where an order passed on an application under Order 39 Rules 1 and 2 CPC is appealable under Order 43 Rule 1(r) CPC, a writ petition challenging such order is not maintainable as the petitioner has an efficacious alternative remedy of appeal. The court declined to entertain the petition on this ground. (Paras 5-7)
Issue of Consideration
Whether the writ petition is maintainable when the impugned order dismissing applications for interim relief is appealable under Order 43 Rule 1(r) of the Code of Civil Procedure, 1908.
Final Decision
The writ petition is dismissed. The petitioner is at liberty to avail the remedy of appeal against the impugned order.
Law Points
- Alternative remedy
- maintainability of writ petition
- appealable order
- Order 43 Rule 1(r) CPC
- Section 9A CPC
Case Details
2018 LawText (BOM) (01) 136
WRIT PETITION NO. 7884 OF 2017
Shri R.M.Sharma for Petitioner, Shri Shyam Dewani for Respondent
Anand S/o. Madanmohan Jaiswal
M/s. Shewalkar Developers Ltd.
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Nature of Litigation
Civil suit for declaration of possession and injunction, with applications for interim relief and rejection of plaint on limitation.
Remedy Sought
Petitioner sought mandatory injunction to restore possession and interim relief restraining construction pending adjudication of limitation issue.
Filing Reason
Petitioner claimed settled legal possession of suit property and alleged disturbance by respondent.
Previous Decisions
Trial court dismissed applications Exh.37 (under Order 39) and Exh.50 (under Section 9A(2)) by composite order.
Issues
Whether the writ petition is maintainable when the impugned order is appealable under Order 43 Rule 1(r) CPC.
Submissions/Arguments
Petitioner argued that the order on Exh.50 under Section 9A(2) is not appealable, so the writ petition should be entertained.
Court noted that the composite order is essentially under Order 39, and an appeal lies under Order 43 Rule 1(r).
Ratio Decidendi
A writ petition challenging an order that is appealable under Order 43 Rule 1(r) CPC is not maintainable as the petitioner has an efficacious alternative remedy of appeal.
Judgment Excerpts
The order passed on application (Exh.37) is appealable under Order 43 Rule 1(r) of the Code of Civil Procedure.
Section 9A of the Code of Civil Procedure (as applicable in the State of Maharashtra) provides that when at the hearing of the application relating to interim relief in civil suit, objection to the jurisdiction of the Court is taken, such issue has to be decided by the Court as preliminary issue.
Procedural History
Petitioner filed civil suit. Respondent filed application under Order 7 Rule 11 CPC for rejection of plaint on limitation. Petitioner filed applications under Order 39 Rules 1 and 2 CPC (Exh.37) and under Section 9A(2) CPC (Exh.50). Trial court dismissed both applications. Petitioner filed writ petition under Article 227.
Acts & Sections
- Code of Civil Procedure, 1908: Order 7 Rule 11, Section 9A, Section 151, Order 39 Rules 1 and 2, Order 43 Rule 1(r)
