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Bombay High CourtWP/6489/2022disposed off

Sachin Ganpat Shirke v. State Of Maharashtra And ORS

2022-11-23Hon'Ble Shri Justice R. I. Chagla2 pages

24.WP.6489.22 wt..doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6489 OF 2022 WITH INTERIM APPLICATION NO. 3434 OF 2022 Sachin Ganpat Shirke ...

Petitioner

Versus

State of Maharashtra & Ors.

... Respondents Mr. Laxman Venkatesan for the Petitioner.

Mr. Manoj Patil for the Respondents.

Mr. C.D. Mali, A.G.P. for the State-Respondent No.1. CORAM : R.I. CHAGLA, J.

DATED : 23rd NOVEMBER, 2022.

ORDER :

Heard the learned Advocate appearing for the Petitioner. A preliminary objection has been raised by the learned Advocate for Respondent No.2 on the ground that by a prior order dated 13.01.2021 this Court had held that Writ Petition is not maintainable against Judgment and decree impugned in the Petition. The very same judgment and decree has also been challenged in the present Writ Petition for setting aside of the impugned judgment and decree as being unlawful and unsustainable.

Waghmare 1/2

24.WP.6489.22 wt..doc The learned Advocate appearing for the Petitioner states that the present Writ Petition has been filed under Article 227 of the Constitution of India whereas the prior Writ Petition has been filed under Article 226 of the Constitution of India.

Considering that by the prior order dated 13.01.2021, it was held that in view of the challenge being to the judgment and decree of the City Civil Court, the Writ Petition was not maintainable, the present Writ Petition whether it was filed under Article 226 or 227 of the Constitution of India makes no difference. An appropriate remedy would have been to file First Appeal which had been filed and thereafter, withdrawn as recorded in order dated 20.09.2019. However, in view of the Writ Petition held to be not maintainable, an opportunity is given to the Petitioner herein to take out appropriate remedy in law against the decree under challenge in the Petition including the filing of a First Appeal which shall not be foreclosed. Accordingly, the present Writ Petition stands dismissed on the ground of non-maintainability.

As a consequence thereof, the Interim Application does not survive and is accordingly disposed of.

by WAISHALI SUSHIL WAGHMARE Date:

2022.12.01 11:01:58 +0530 (R.I. CHAGLA, J.) WAISHALI SUSHIL WAGHMARE Waghmare 2/2