UNION OF INDIA Vs. KALIMULLAH KHAN AND ANOTHER

JUDGEMENT

(1.) A petition under Sec. 115 Code of Civil Procedure and/or under Art. 227 of the Constitution was filed by the petitioner challenging the jurisdiction of the court of learned Assistant District Judge as well as the orders impugned therein. Although the petition was also under Art. 227 of the Constitution, petitioner did not make the Presiding Officer a party and leave was granted for the amendment of the petition. Instead of approaching for the amendment, the petitioner has filed separate petition under Art. 227 of the Constitution of India challenging the jurisdiction of the court in the proceeding with T.S. No. 8(H)/90 and of passing of the an-interim order in violation of the provision of Sec. 80 Code of Civil Procedure as well as entertaining the suit which is apparently grossly under valued, inasmuch as, while the suit has been valued at Rs. 10,000.00 the ad-interim order has effect of restraining the petitioner from recovering the amount to the extent of Rs. 3,00,000.00.

(2.) Mr. S.R. Sen, learned counsel for the opposite party has raised the preliminary objection that the petition under Sec. 115 Code of Civil Procedure is not maintainable, inasmuch as against the impugned order rejecting the application under Sec. 34 of the Arbitration Act, an appeal lies. Mr. Sen has submitted that the question of jurisdiction should have been raised before the court of the learned Assistant District Judge. This point could not be allowed to be urged in the course of argument in an application under Sec. 34 of the Arbitration Act. Similarly the question, as to whether the suit is under valued, ought to have been raised before the court below. Mr. Sen has further submitted that the petition under Art. 227 of the Constitution is not an alternative petition but a petition for conversion of the petition under Sec. 115 Code of Civil Procedure which is not permissible. In support of this contention Mr. Sen placed reliance in the decision of the Supreme Court in the case of Vishesh Kumar Vs. Shanti Prasad, AIR 1980 C 812. In para 22 of the said decision the Apex Court held :

(3.) In the instant case, a separate petition under Art. 227 of the Constitution has been filed. On going through the contents of the petition I have no hesitation to hold that the petition under Art. 227 of the Constitution of India, is an alternative petition and not a petition for conversion of the petition filed under Sec. 115 C.P.C.