MP 1 WP3221_11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3221 OF 2011 Mangalprabhat Gumanmal Lodha and others ... Petitioners Versus Sunil Raghunath Bhoir and others ... Respondents Mr. Janak Dwarkadas, Senior Advocate with Mr. Rahul Dwarkadas, Ms. Rina Marshall i/b. Wadia Gandhy & Co. for Petitioners. Mr. R. S. Apte, Senior Advocate with Mr. Shivraj R. Patil for Respondent No. 1. CORAM : B.R. GAVAI, J. TUESDAY, APRIL 26, 2011 P. C. : The petitioners in the extra-ordinary jurisdiction of this court under Article 227 of the Constitution of India challenge the order dated 15th April 2011 passed by the learned 2nd Joint Civil Judge, Senior Division, Thane in Special Civil Suit No. 331 of 2011 thereby issuing show-cause notice to the defendants, on an application for temporary injunction, returnable on 28th April 2011, and in the meanwhile, directing them to maintain status-quo with respect to the suit properties. 2. At the outset, when the court has pointed out to Mr. Dwarkadas, the learned Senior Counsel appearing on behalf of the petitioners, that since the petitioners have an alternate efficacious remedy available in law under Order 43, Rule 1 (r) of the Code of Civil Procedure, the petition would not be tenable under Article 227 of the Constitution of India, the learned Senior Counsel submits that, in the facts and circumstances of the case, this is a fit case where this court in the extra-ordinary jurisdiction under Article 227 of the Constitution of MP 2 WP3221_11 India should entertain the petition. The learned Senior Counsel submits that a dishonest litigant like the present plaintiff, by suppressing the material facts and after receiving huge amount of Rs. 80 lakhs, has malafidely obtained the order impugned herein. He submits that though there is a registered agreement in favour of the present petitioners, executed by the respondent-plaintiff, by merely averring in the plaint that the said agreement is obtained by coercion, he has approached the learned Trial Court and the learned Trial Court merely for asking without following a mandate under Order 39 Rule 3 of the Code of Civil Procedure has granted an order impugned. The learned Senior Counsel submits that the said order is ex-facie in breach of not only the provisions of Order 39 Rule 3 of the Code of Civil Procedure, but also of the judgment of the Apex Court in the case of Shiv Kumar Chadha Vs. Municipal Corporation of Delhi reported in (1993) 3 SCC page 161, judgment of the learned Division Bench of this Court in the case of Sopan Maruti Thopte and another Vs. Pune Municipal Corporation and another reported in 1996 (1) Mh.L.J. page 963 as also the judgment of the learned Single Judge of this Court in the Suit lodging No. 3821 of 2008 (M/s. KBC Pictures Vs. A. R. Murgadoss and others). The learned Senior Counsel submits that the learned Trial Judge has not even given any reasons as mandated under Order 39 Rule 3 while granting an ex- parte interim order and doing away with the requirement of the notice as provided under the said Rule. Mr. Dwarkadas, the learned Senior Counsel further submits that the impugned order is also in utter breach of fundamental rights of the petitioner. The learned Senior Counsel further submits that while exercising the extra-ordinary jurisdiction under Article 227 of the Constitution of India, it is necessary that this court should give message to the subordinate judiciary, that such a departure from the mandatory rules would not be taken lightly by this MP 3 WP3221_11 court and that the courts subordinate to this court should exercise their jurisdiction within the parameters laid down by the law. The learned Senior Counsel, therefore, submits that the impugned order is liable to be set aside by this court in the extra-ordinary jurisdiction, without waiting for a minute. 3. Mr. Apte, the learned Senior Counsel appearing on behalf of the respondents, on the contrary, submits that the contentions, as raised by the petitioners, are devoid of substance. He further submits that the respondent-plaintiff has a very good case on merits, and only after considering his submission, an ad-interim relief has been granted by the learned Trial Court which warrants no interference. 4. No doubt that the subordinate courts are required to exercise their jurisdiction within the parameters laid down by law. Equally, it is a settled position of law that when the law requires a particular thing to be done in a particular manner, the subordinate courts are required to do in that manner alone. It is equally true that the exercise of non-jurisdiction by this court under Articles 226 and 227 of the Constitution of India, in the event of availability of alternate efficacious remedy, is a rule of self- restraint. In a given case, this court would not be precluded to exercise its extra-ordinary jurisdiction under Article 226 and Article 227 of the Constitution of India, if the facts of the case so warrant. The question that would have to be, therefore, answered is as to whether in the facts of the present case, this court should exercise the extra-ordinary jurisdiction under Article 227 of the Constitution of India or not. 5. Admittedly, the order impugned is referable to the jurisdiction of the learned Trial Court under Order 39, Rule 1 and 2 of MP 4 WP3221_11 the Code of Civil Procedure. Admittedly, an appeal is provided under Order 43, Rule 1(r) of the Code of Civil Procedure against the said order. Admittedly, since the said order is passed by the Civil Judge, Senior Division, the appeal would be tenable before this Court. The Honourable the Chief Justice, in exercise of his powers, has assigned different nature of works to the different judges. As per the assignment, the appeal against orders are assigned to some other learned Single Judge and the writ petition arising out of the orders passed under the Code of Civil Procedure are assigned to this court. It cannot be said that a remedy available before the learned Single Judge of this Court, exercising the concurrent jurisdiction is not an efficacious remedy. Neither can it be said that the grounds, which are sought to be raised by the petitioners in the present petition, cannot be agitated in the appeal which would be tenable before this court. 6. If the contention of the petitioners is to be accepted, it will give the tool in the hands of the litigants to contend that the order is ex- facie not permissible in law and in a violation of the fundamental rights, and therefore, he should be permitted to file a writ petition instead of filing an appeal against the order in the same court. In my view, if this is permitted, it will lead to encouraging a litigant to resort to Bench / Forum Hunting. Whenever it suits the litigant, he may choose to file an appeal against order, and whenever for some reasons, it does not suit him, he may file a writ petition. Entertaining such a plea, in my view, would make the assignments, as directed by the Honourable the Chief Justice, redundant. It may further lead to an unhealthy practice permitting a Forum Hunting to the litigant. In that view of the matter, I find that the petitioners have not made out a case for entertaining the present petition, bypassing the alternate efficacious remedy available to MP 5 WP3221_11 them of filing an appeal against order before this court. In that view of the matter, no case is made out for interference in the extra-ordinary jurisdiction under Articles 226 and 227 of the Constitution of India. Rejected. 7. Needless to state that, dismissal of the present petition would not come in the way in filing of the appeal against order, as permissible in law. (B.R. GAVAI, J)