IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.19984 of 2011 Ram Ran Vijay Prasad Pal @ Ram Ran Bijay Prasad Pal & Ors Versus The State Of Bihar & Ors ---------------------------------- 02. 18.11.2011 Heard the learned senior counsel, Mr. J.P.Shukla on behalf of the petitioners. This application under Article 227 of the Constitution of India has been filed by the plaintiffs- petitioners against the order dated 27.09.2011 passed by Munsif II, Buxar in Title Suit No.37 of 2008 whereby the learned Court below directed to return the plaint to the plaintiff for proper presentation finding that he has got no pecuniary jurisdiction to try the suit. This order has been passed by the Court below in exercise of power under Order 7 Rule 10 C.P.C.. In view of the provision as contained in Order 43 Rule 1 clause ‘a’, the impugned order is appealable and, therefore, the petitioner has got alternative efficacious remedy. The learned counsel for the petitioner relied upon a decision reported in (2007) 4 SCC 343(Begum Sabiha Sultan vs. Nawab Mohd. Mansur Ali Khan & ors.). From perusal of the said decision, it appears that the Hon’ble Supreme Court has laid down about the matter to be considered while passing order under Order 7 Rule 10. Nowhere it is mentioned that the appeal is maintainable. The learned counsel next relied upon a decision reported in (1997) 2 1 SCC 502(Joginder Tuli vs. S.L. Bhatia & Anr.). From perusal of the said decision, it appears that against the order returning the plaint Civil Revision was filed before the High Court which was entertained by the High Court. It further appears that this question was never considered in this decision as to whether the appeal is maintainable or not. In the case of Shalini Shyam Shetty and another vs. Rajendra Shankar Patil (2010) 8 SCC 329, the Apex Court has held that in certain cases where there is infringement of fundamental right the relief under Article 226 of the Constitution can be claimed ex debito justitiae or as a matter of right. But in cases where the High Court exercises its jurisdiction under Article 227, such exercise is entirely discretionary and no person can claim it as a matter of right. In the instant case, admittedly, the statute provides a procedure and the petitioner has got statutory right of appeal. In such view of the matter, I am not inclined to exercise supervisory discretionary jurisdiction under Article 227 of the Constitution of India particularly when the petitioner has got alternative remedy under the statute. At this stage, the learned counsel for the petitioner seeks permission to withdraw this writ application to enable him to file appeal before 3 appropriate forum. Permission is accorded. If appeal is filed along with limitation application for condoning the delay, the concerned Court shall consider the fact that petitioner was pursuing the writ application before this Court and pass order according to law. With this observation, this writ application is dismissed. Saurabh (Mungeshwar Sahoo, J.)