BISHAMBHAR Vs. IIIRD ADDITIONAL DISTRICT JUDGE AZAMGARH

JUDGEMENT

(1.) The plaintiff-petitioner had filed Original Suit No. 50 of 1980 before the trial court praying for a relief of injunction directing the defendants to remove the tube well fixed in the plot in dispute and also for permanent injunction restraining the defendants from interfering with the plaintiff's possession over a number of plots mentioned in the plaint on the ground that by playing fraud on the plaintiff the defendants have got fictitious entries made over the disputed plots during the consolidation proceedings. The relief of possession was also asked for in the alternative. The said suit was contested by the defendants-respondents on the ground that the Civil Court had no jurisdiction to try the suit, which according to the defendants was cognizable only by the revenue courts. On the pleas of the parties although the trial court framed a number of issues but the issue regarding the jurisdiction of the Civil Court was tried as a preliminary issue. After scrutiny of the evidence led by the parties before the trial court, the trial court found that in substance the suit was for declaration of the rights over the agricultural land and, therefore, no relief for injunction could be granted. It also held that the plaintiff was out of possession. It accordingly passed an order returning the plaint for presentation before the revenue court. Aggrieved, the plaintiff filed an appeal which has been dismissed by the lower appellate court by the impugned order dated 15-5-1981. Still aggrieved the plaintiff-petitioner has filed the present writ petition in this Court. Counter and rejoinder affidavits have been exchanged in this case.

(2.) Learned counsel for the parties have been heard. During the pendency of the writ petition in this Court an application has also been moved by the petitioner for amending the plaint. The said application has been stoutly opposed by Sri Kameshwar Nath Tripathi, learned counsel for the respondents on the counts. Firstly, that the writ petition in this court is not continuation of original suit and consequently since both the courts below have taken the view that the aforesaid suit is cognizable by the revenue court alone and an order has also been passed for returning the plaint for presentation before the revenue court, therefore, in the eves of law, no suit is pending in the civil court and in the absence there of no application for amendment is maintainable.

(3.) To examine the above submission, we have to consider the scope of writ jurisdiction under Article 226 of the Constitution of India. It has been held by the Supreme Court in the case of State of U.P. v. Dr. Vijay Anand Maharaj, AIR 1983 SC 946 : (1962 All LJ 819) in paragraph 3, and in the case of Ramesh v. Gendalal Motilal Patel, AIR 1966 SC 1445, that the writ jurisdiction under Article 226 of the Constitution of India of the High Court is in exercise of its extraordinary original civil jurisdiction. When a writ petition is filed challenging a decision in a suit for proceeding declaring or adjudicating rights or interest in any land the High Court calls for the relevant record of the suit or proceeding and if it is found that the impugned order is without jurisdiction or suffers from a manifest error of law or an effort of law apparent on the fact of the record, all that the High Court does and has to do is to quash the impugned order but at the same time the High Court will not substitute its own order or decree for the impugned order or the decree passed by the Civil Courts below. All that the High Court can do in such a situation is that it must send back the matter to the lower court concerned for deciding the case in accordance with the law declared by the High Court. After doing so when the lower court passes an order in compliance with the law declared by the High Court. The executable order with regard to the rights of the parties in dispute in such a case is not the order of the High Court in the writ petition but is the ultimate decision given by the Court below and it cannot be said that the order passed by the High Court in the exercise of its Writ jurisdiction is the executable order. In case the petition is dismissed by this Court again the consequence that will follow will be that the order of the subordinate Court is the order which decides the rights of the parties in dispute.