Shree Chandrashekhar,J. - (1.) Aggrieved by order dated 21.02.2011 passed by the Additional District and Sessions Judge, F.T.C.II in Title Appeal No.47 of 2009, the petitioner has preferred this writ petition under Article 227 of the Constitution of India.
(2.) Mr. V. Shivnath, the learned senior counsel appearing for the respondents raises a preliminary objection as to maintainability of the writ petition on the ground that under Order 43(1)(u) CPC, against the order impugned in the present proceeding, a Misc. Appeal would lie and therefore, the present writ petition filed under Article 227 of the Constitution of India is not maintainable. The learned senior counsel relies on a decision in "Shalini Shyam Shetty & Anr. v. Rajendra Shankar Patil", reported in (2010) 8 SCC 329, which was affirmed in "Sameer Suresh Gupta v. Rahul Kumar Agarwal", reported in (2013) 9 SCC 374 and submits that there is an inherent restriction in exercise of jurisdiction under Article 227 of the Constitution of India, by the High Court. In a case where a statutory appeal would lie, the High Court exercising its power under Article 227 of the Constitution of India cannot entertain the writ petition and decide the matter on merits.
(3.) The learned counsel appearing for the petitioner submits that there are several judgments of Hon'ble Patna High Court in which, a writ petition filed under Article 227 of the Constitution of India has been permitted to be converted into one as Misc. Appeal and vice versa. He relies on a decision in "Ajay Bansal v. Anup Mehta & Ors.", reported in AIR 2007 SC 909 and submits that the Hon'ble Supreme Court in the said case permitted the appellant to convert the writ petition into an appeal. The facts of the present case are even better than the case of "Ajay Bansal" because in the present case, there is no decree of the trial court and therefore, the writ petition may be converted into a Misc. Appeal.;