JUDGMENT :

1. The instant Civil Miscellaneous petition has been filed by the petitioner assailing the order dated 09.01.2023 passed by Ms. Purnima Tirkey, learned Civil Judge, Junior Division, Hazaribag in Title Suit No. 31 of 2016 (herein after called the impugned order) whereby and whereunder the learned trial court has rejected the application for interim injunction of the petitioner under order XXXIX Rule 1 and 2 of the CPC.

2. The petitioner/ plaintiff has instituted the above Title Suit No. 31 of 2016 against the respondents/defendants seeking following reliefs.

a. That on adjudication the plaintiff’s title and possession over the suit land be declared.

b. That the sale deed No. 9655 dated 04.07.1984 executed by Chintaman Sao in favor of Badri Sao Keshri and sale deed no. 7905 dated 20.06.1995 executed by Badri Sao Keshri in favour of Kishori Prasad Keshri and sale deed no. 7906 dated 20.06.1995 executed by Badri Sao Keshri in favour of Rajendra Prasad Keshri and sale deed no. 5054 dated 18.05.1994 executed by Lakhan Prasad Keshri in favour of Rajendra Prasad Keshri and Kishori Prasad Keshri be declared null & void, illegal and without consideration and never operated and not passed title and are not not binding upon the plaintiff.

c. That if it is found by the court that the plaintiff has been dispossessed, a decree for recovery of possession over the suit lands be passed in favour of the plaintiff and he may be put into khas possession over the same by evicting the defendant no. 3 and 4 therefrom through the process of the court at the cost of the defendant no. 3 and 4.

d. That a decree of permanent injunction be granted in favour of the plaintiff restraining the defendants no. 3 and 4 or their men or agents from either going upon the suit land or from causing any disturbance in possession over the suit lands be passed.

e. That the cost of the suit be awarded to the plaintiff.

f. That any other relief or reliefs to which the plaintiff may be found entitled to under law and equity be also granted to the plaintiff.

Arguments of petitioner

3. It is submitted by the learned counsel for the petitioner that during the pendency of the aforesaid suit the defendants started trying to dispossess the plaintiff from suit scheduled B. Hence, properly an application under order XXXIX Rule 1, 2 read with Section 151 CPC (annexure 6) dated 21.01.2022 was filed before the learned trial court which has been illegally rejected by the impugned order, which is fit to be set aside.

It is further submitted that no appeal against the impugned order has been preferred under Order XLIII Rule 1 (r) read with Section 104 CPC.

(Reasons For Decision & Order)

4. At the time of argument, learned counsel for the petitioner has admitted that against the impugned order passed by learned Civil Judge Junior Division, no appeal as provided under Order XLIII Rule 1, (r) read with Section 104 CPC was ever preferred before the superior court before whom the appeal ordinarily lies i.e. the District Judge.

In the case of Virudhunagar Hindu Nadargal Dharma Paribalana Sabai and Ors. Vs. Tuticorin Educational Society and Ors. reported in (2019) 9 SCC 538, it was observed and held by the Hon’ble Apex Court that “wherever the proceedings are under the Code of Civil Procedure and the forum is the civil court, the availability of a remedy under CPC, will deter the High Court and therefore, the High Court shall not entertain the revision under article 227 of the Constitution of India especially in the case where a specific remedy of appeal is provided under CPC itself. While holding so, it is observed and held in para 11 and 13 as under:-

“Secondly, the High Court ought to have seen that when a remedy of appeal under Section 104 1(i) read with Order XLIII rule 1 (r) of the Code of Civil Procedure 1908, was directly, available, the respondents 1 and 2 ought to have taken recourse of the same.”

Placing reliance upon reported Judgment in A. Venkatasubbiah Naidu Vs. Chellappan (2000) 7 SC