Aligarh Muslim University vs Vllth Add).C.J.M.(Add).C.J.) Aligarh & Anr.

Binod Kumar Roy, J.—Heard learned Counsel for the petitioner in regard to admission of this writ petition in which following threefold prayers have been made :

(i) To quash the order dated 6th September, 1990 passed by VII Additional Chief Judicial MagistratecumCivil Judge (Senior Division), Aligarh (Respondent No. 1) in Original Suit No. 130 of 1990 as contained in Annexure 7.

(ii) To quash the proceedings of the aforementioned suit.

(iii) To restrain Respondent No. 1 from passing any further orders in the suit.

From perusal of the impugned order dated 691990 it appears that an Advocate Commissioner was appointed.

Such an order is revisable under Section 115 of the Code of Civil Procedure inasmuch as the Legislature has now widened the meaning of the word ''case decided''. Accordingly, the remedy of the petitioner as to file a civil revision and not to rush to this Court for exercising extraordinary constitutional jurisdiction.

So far as the prayer for quashing the civil proceedings are concerned on the ground of the suit being barred under the provisions of the Aligarh Muslim University Act, 1920, we are of the view that if a suit is not maintainable the remedy of the defendant is either to file an application under Order VII, Rule 11 of the Code of Civil Procedure or after filing written statement to pray for deciding the issue of nonmaintainability of the suit as a preliminary issue as the Hon''ble Supreme Court has categorically laid down in Ghanshyam Das Gupta and another v. Anant Kumar Sinha and others, AIR 1991 SC 2251, when a statutory tenant filed a writ petition before this Court which allowed the writ petition directing that they shall not be evicted from the premises in dispute in pursuance of an eviction decree passed by Small Causes Court, Allahabad, as follows :

"The principle as to when the High Court should exercise its special jurisdiction under Article 226 and when to refuse to do so on the ground of availability of an alternative remedy has been settled by a long line of cases. The remedy provided under Article 226 is not intended to supersede the modes of obtaining relief before a Civil Court or to deny defences legitimately open in such actions."

We are sure that the Civil Court concerned shall take up and decide the preliminary issue, if taken and raised.

With the liberty and observations as above this writ petition is dismissed.

The office is directed to despatch a copy of this order within two weeks to Respondent No. 1 for a follow up action.