PRAHLAD PANDEY Vs. STATE OF BIHAR

JUDGEMENT

(1.) By this writ petition under Article 226 of the Constitution of India, the petitioners who have not been able to get adjudication over the right of the occupation in respect of the disputed shops in Title Suit No. 179 of 1992 filed before the learned 2nd Munsif, Bhagalpur, for declaration and injunction and the same has been withdrawn on 16-1-98 by themselves, have now switched on to avail of the discretionary remedy under Article 226 of the Constitution and in this way playing second inning.

(2.) On the same set of facts this Court in L.P.A. No. 1301 of 1996 (Sachidanand Roy and others v. The State of Bihar and others) and other analogous appeals arising out of the order passed in C.W.J.C. No. 9436 of 1996 (Abhay Kumar Pandey and others v. The State of Bihar and others) and other analogous writ petitions, decided on 12-8-1997 allowing the L.P.A.' and dismissing the writ petitions, held that since Title Suit No. 179 of 1992 is pending before the Munsif' Court at Bhagalpur, the jurisdiction under Article 226 of the Constitution of India can not be resorted to once having elected the forum and filed the Civil Suit.

(3.) In the above referred L.P.As. vide para 5 of the judgment this Court observed that the pleadings as set out by the petitioners in the plaint and repudiated by the respondent Bihar State Financial Corporation and others in respect of tenancy right of the petitioners over the disputed shops in question appeared to be a "disputed question of fact" which cannot be gone into by the writ Court particularly where the petitioners have elected a forum and filed the Suit. Even in an application for grant of temporary injunction no prima facie case, balance of convenience in favour of the petitioners and further in the event of dismissing the application for injunction no irreparable injury to be caused to the petitioner was found. Despite that after withdrawing the Suit on 16-1-98 this writ petition is filed as if Article 226 of the Constitution of India gives a vested right to the litigant.