JUDGMENT
Badar Durrez Ahmed, J.
1. The petitioner has filed this writ petition under Articles 226 and 227 of the Constitution of India impugning the order dated 3.7.2003 passed by the learned District Judge in an application under Section 10 of the Code of Civil Procedure, 1908 moved by the respondent No. 2 for staying the proceedings in the probate matter being letter of administration Case No. 91/2002 in view of the pendency of Suit No. 870/2002 for partition filed by the respondent No. 2 in this Court.
2. The brief facts of the case are that the property bearing No. D-57, defense Colony, belonged to late Wing Commander Gurcharan Singh. Late Gurcharan Singh passed away sometime in June, 1968 leaving behind his widow Smt. Kartar Gurcharan Kaur and two sons and a daughter. The sons being one Shri Sarboland Singh and Col. Inderjit Singh (respondent No. 2). The daughter being the petitioner. By a will left by late Gurcharan Singh his property devolved upon his heirs in the following manner:-
Smt. Kartar Gurcharan Singh 1/2 Share
Shri Sarbuland Singh 1/6 Share
Col. Inderjit Singh (Respondent No. 2) 1/6 Share
Ms. Anant Virender Singh (daughter) 1/6 Share
Thereafter, Shri Sarboland Singh who was a bachelor expired on 1.1.1974 and his share went entirely to the mother Smt. Kartar Gurcharan Singh. Thus, the shares became:-
Smt. Kartar Gurcharan Singh 1/6th
Col. Inderjit Singh 1/6th
Ms. Anant Virender Singh 1/6th
Smt. Kartar Gurcharan Singh also passed away and she is claimed to have left a will dated 15.6.1990 whereunder she has purportedly bequeathed her entire property in favor of the petitioner. Thus the petitioner on the strength of the said will claims 5/6th share in the said property. On the other hand the respondent No. 2 claims that both the petitioner and the respondent No. 2 have half share each in the property.
3. In this background the respondent No. 2 filed a suit bearing No. 870/2002 which is pending in this Court wherein he has claimed partition by metes and bounds on the basis of the alleged half share each on the strength of a purported Deed of Family Settlement. The petitioner on the other hand filed the aforesaid case for obtaining letters of administration/probate of the will. The petitioner alleges that in the probate matter, instead of filing of a written statement despite several opportunities being granted therefore, the respondent No. 2 filed an application under Section 10 of the CPC for stay of the proceedings in view of the pendency of the said suit. It is the petitioner’s grievance that provisions of Order VIII Rule 1 of the CPC as well as Order XVII Rule 1 (1) of the CPC have been violated inasmuch as written statement was not filed by the respondent No. 2 in the probate matter within the period specified in the aforesaid provisions and yet the application of the respondent No. 2 was entertained.
4. The petitioner has also stated that the learned District Judge has erred in allowing the application of the respondent No. 2 and in staying the proceedings in the probate matter. The learned District Judge has done so after examining the facts and circumstances of the case before him. He came to the finding that the controversy before him in the probate matter was directly and substantially in issue before this Court in the suit. He further held that the probate matter was admittedly subsequent in time (having been filed in July, 2002) to the institution of the suit which was done in April, 2002. Accordingly, the learned District Judge had stayed the probate proceedings. The petitioner is aggrieved by this order of the learned District Judge and, accordingly, has filed the present writ petition.
5. At the threshold it was pointed out to the petitioner who appeared in person that in a recent decision of the Supreme Court in the case of Sadhana Lodh v. National Insurance Co. Ltd. And another, in paragraph 6 thereof it was clearly indicated as under:-
“Where a statutory right to file an appeal has been provided for, it is not open to High Court to entertain a petition under Art. 227 of the Constitution. Even if where a remedy by way of an appeal has not been provided for against the order and judgment of a District Judge, the remedy available to the aggrieved person is to file a revision before the High Court under Section 115 of the Code of Civil Procedure. Where remedy for filing a revision before the High Court under Section 115 of CPC has been expressly barred by a State enactment, only in such case a petition under Article 227 of the Constitution would lie and not under Article 226 of the Constitution. As a matter of an illustration, where a trial Court in a civil suit refused to grant temporary injunction and an appeal against refusal to grant injunction has been rejected, and a State enactment has barred the remedy of filing revision under Section 115, C.P.C., in such a situation a writ petition under Article 227 would lie and not under Article 226 of the Constitution. Thus, where the State legislature has barred a remedy of filing a revision petition before the High Court under Section 115, C.P.C., no petition under Article 226 of the Constitution would lie for the reason that a mere wrong decision without anything more is not enough to attract jurisdiction of High Court under Article 226 of the Constitution.”
In view of the clear declaration of the law the present petition filed by the petitioner invoking Articles 226 and 227 of the Constitution would not be maintainable. Article 226 would not apply for the simple reason that no petition under Article 226 of the Constitution would lie for the reason that a mere wrong decision without anything more is not enough to attract the jurisdiction of the High Court under Article 226. Insofar as Article 227 is concerned, the same would be available to the petitioner only where the remedy for filing the revision of the High Court under Article 115 of the Code of Civil Procedure has been expressly barred by some enactment. In the facts and circumstances of the present case there is no statutory bar for filing of a revision petition under Section 115 of the Code of Civil Procedure. As such, the petitioner in the present case, if he is aggrieved by the order dated 3.7.2003 passed by the learned District Judge, is not prevented from filing a revision petition under Section 115 of the CPC. In this view of the matter the petitioner is clearly not entitled to invoke the jurisdiction of this Court under Article 227 of the Constitution.
6. However, the petitioner in person referred to the following cases to urge that the petition would be maintainable under Article 227:
1. T.C. Basappa v. T.Nagappa and another,
2. Surendra Nath Bibraa v. Stephen Court Ltd. , .
3. P.V. Shetty v. B.S. Giridhar,
4. Dr. Smt. Kuntesh Gupta v. Management of Hindu Kanya Mahavidyalaya, Sitapur (UP) and others,
5. Srikant Kashinath Jituri and Others v. Corporation of the City of Bengaum,
6. Estralla Rubber v. Dass Estate (P) Ltd. , .
There is nothing in any of these decisions which is contrary to what has been held by the Supreme Court in the case of Sadhana Lodh (supra) and which is in favor of the petitioner’s case for maintainability.
7. Lastly, the petitioner-in-person has urged that although he had a remedy under the ordinary law under the provisions of the Code of Civil Procedure that remedy is not equally efficacious and on the contrary it is onerous on account of the fact that he would have to pay a huge amount by way of court fee etc. The petitioner placed reliance on the decision of the Supreme Court in the case of J.M. Baxi & Co. Gujarat v. Commissioner of Customs, New Kandla and another, and in particular on the observations of the Supreme Court in paragraph 3 thereof which reads as under:-
“3. Normally, the High Court ought not to interfere in exercise of its jurisdiction under Article 226 when adequate alternative remedy is available, but in the special facts of this case when the demand was raised and the same had been challenged on the ground that it was barred by time and where the demand is nearly of 46 lakhs of rupees which will have to be deposited before any appeal can be filed, we are of the opinion that the High Court ought to have exercised its jurisdiction and determined the questions which were raised in the writ petition on merits. In dealing with the contentions raised by the appellant, the High Court would necessarily have to consider the contentions of the respondents as well.”
These observations would not apply to the facts and circumstances of the present case. Firstly, that case was one where the Supreme Court was considering the jurisdiction of the Court under Article 226 which I have already held would be inapplicable in the present case. I am here concerned with the remedy under Article 227 and that is declared to be non-invocable in the case of Sadhana Lodh (supra) unless and until the remedy of revision under Section 115 of the CPC is barred by some statutory provisions. This decision in the case of J.M. Baxi & Co. (supra) does not enable us to detract from the clear statement of law made by the Supreme Court in the case of Sadhana Lodh (supra).
8. In view of the foregoing discussions it is clear that the petition as filed by the petitioner is not maintainable and is dismissed as such at the threshold itself. Liberty is granted to the petitioner to take recourse to the appropriate remedy under the Code of Civil Procedure before the appropriate forum.