29 Jun 2121

Statutory remedy of Appeal under Order XLIII of the Code of Civil Procedure, 1908 must be exhausted before invoking the Supervisory jurisdiction - Bombay High Court

Case : Syed Abdul Rahim v. Qumar Begum and Ors. Writ Petition No. 7058 of 2021

Court : Bombay High Court

Bench : Justice Sandeep K. Shinde

Decided on : 29 Jun 2121

Relevant Statues

Articles 226 of the Constitution of India, 1950

Order XXXIX Rule 1 or 2, Order XLI Rule 1(r), Order XLIII of the Code of Civil Procedure, 1908

Brief Facts & Procedure History

1. The relevant seminal facts are that the Petitioner/plaintiff instituted RCS No. 22 of 2021 in the Court of Civil Judge, Junior Division, Parali, District Beed on 27.01.2021, seeking declaratory relief and preventive injunction against the defendants. Defendant No. 1 is the mother whereas, Nos. 2 and 3 are the brother-in-laws of the Petitioner/plaintiff.

2. It is the Petitioner’s case that the suit properties were owned by his father who in his lifetime transferred the suit properties in the name of Defendant No. 1 (mother of plaintiff). Upon presenting the suit, Plaintiff was apprehending that the mother would frustrate the suit by alienating suit properties. Therefore, he moved an application and requested the Trial Court that the parties to the suit be directed to maintain a status-quo in respect of the suit properties. The Trial Court declined the request vide order dated 16.3.2021. This order is challenged in the instant petition.

The Issue(s) of the Case

Whether the Petitioner is entitled to maintain a status-quo in respect of the suit properties?

The Observations of the Court

The Honourable Bombay High Court observed the following:

1. Opined that the application moved by the Plaintiff/petitioner seeking the order, ‘to maintain status-quo’, qua suit properties was an application made under Order XXXIX Rule 1 or 2 of the Code of Civil Procedure, 1908 and therefore order passed therein was appealable under Order XLI Rule 1(r) of the Code of Civil Procedure, 1908.

2. Further opined that since appealing under Order XLIII of the Code of Civil Procedure, 1908 is an efficacious statutory remedy but has not been exhausted before invoking the supervisory jurisdiction, this petition was liable to be dismissed.

3. Based on the above opinions, the Court relied on the case of Rajendraprasad R. Singh v. Municipal Corporation of Greater Bombay, AIR 2003 Bombay 392.

The Decision held by the Court

The Honourable Bombay High Court dismissed the Writ Petition No. 7058 of 2021 and opined that the Petitioner is not precluded from challenging the impugned order in accordance with the law.

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