9911796707
TMI Blog2023 (11) TMI 606X X X X Extracts X X X X X X X X Extracts X X X X ..... dv. Mr. Nirman Sharma, Adv. Mr. Ajiz Mk, Adv. Mr. Rishabh Sethi, Adv. Mr. Gaurav Jain, Adv. Mr. Rahat Kalpatri, Adv. Mr. J Rajesh, Adv. JUDGMENT ABHAY S.OKA , J. Leave granted. 2. It is not necessary to serve notice to the second to eleventh respondents. Notice is accepted by the learned counsel for the first respondent. 3. By the impugned order dated 27th September, 2023, a Division of the Bombay High Court stayed an order passed by a Civil Court in Bihar by entertaining a petition under Article 226 of the Constitution of India. 4. Heard the learned counsel appearing for the appellant and the learned senior counsel appearing for the first respondent. 5. The present appeal discloses a shocking state of affairs. The first respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 155- 156 Possession pending Physical Possession Notice sent: 02.08.2022 @Pg. 170. Yes, pursuant to Siwan Court's Order dated 24.01.2023 4. Andheri Flat No. 314: Flat No. 314, 3rd Floor, Andheri Jumbo Co-operative Housing Society Ltd. situated at Vile Parle, Andheri bearing Survey No. 47/1, CTS No. 95, Plot No. 277, admeasuring 703 sq. ft. 06.08.2019 @Pg. 161- 169 Physical Possession pending Symbolic Possession taken: 23.10.2017 @Pg. 125-128 Yes, pursuant to Siwan Court's Order dated 24.01.2023 5. Vile Parle Flat No. 602: Flat No. 602, 6th Floor, Vallabh Darshan CHSL, AWing, Ville Parle Mumbai. 06.08.2019 @Pg. 161-169 Physical Possession pending Symbolic Possession taken: 23.10.2017 @Pg. 129-132 Yes, pursuant to S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... properties, symbolic possession was taken. If these facts had been pointed out to the Civil Court at Siwan, we are sure that the order which was passed on 24th January 2023 would not have been passed. 7. There is one more serious aspect of the case. The appellant cannot plead ignorance about the proceedings initiated by the first respondent. A written statement was filed in the said suit by the first defendant (second respondent) therein in which there is a specific averment in paragraph 12 that litigations and disputes were pending in the Debts Recovery Tribunal and in the Courts of the Chief Metropolitan Magistrate, Mumbai and Thane regarding the schedule properties. Paragraph 12 also records that the defendants were liable to pay amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Article 226 of the Constitution of India by specifically challenging the order of appointment of the Receiver passed by the Civil Court in Bihar. In our view, the first respondent ought not to have filed such a petition when a statutory remedy was available. Moreover, the High Court ought not to have entertained the Writ Petition. The jurisdiction of the High Court under Article 226 is no doubt very wide. But the propriety and judicial discipline required the High Court not to entertain such a petition. The High Court ought to have relegated the first respondent to the statutory remedy while possibly granting a limited protection. A statutory remedy was available to the first respondent before the concerned Court in Bihar. If the High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke it clear that the status quo as obtaining in respect of the above five properties immediately before the Civil Court passed the order dated 24th January 2023 shall be maintained. 13. The learned counsel appearing for the appellant at this stage agrees that the appellant will implead the first respondent as party defendant No.5 to the suit. 14. Hence, we dispose of the appeal by passing the following order: (a) We set aside the impugned order dated 27th September 2023 passed by the Bombay High Court and dismiss Writ Petition No.7064 of 2023 on the ground that a statutory remedy was available to the first respondent and therefore, the Bombay High Court ought not to have entertained the Writ Petition under Article 226 of the Constitutio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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