Supreme Court of India
ROSHINA T versus ABDUL AZEEZ K.T. & ORS. on 3 December 2018
974 SUPREME COURT REPORTS [2018] 14 S.C.R.[2018] 14 S.C.R. 974
[2018] 14 S.C.R. 974
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ROSHINA T
v.
ABDUL AZEEZ K.T. & ORS.
(Civil Appeal No. 11759 of 2018)
BDECEMBER 03, 2018
[ABHAY MANOHAR SAPRE AND INDU MALHOTRA, JJ.]
Constitution of India: Arts.226/227 – Writ jurisdiction,invocation of – Dispute between appellant and respondent no.1related to the possession of flat – One civil suit between the appellantCand respondent No. 1 in relation to the flat in question for grant ofinjunction was pending in the Munsif Court – Appellant andrespondent No. 1 were private individuals – Writ petition filed byrespondent no.1 – High Court directed the appellant by issuing awrit of mandamus to restore the possession of flat in question toDrespondent no.1 – On appeal, held: Appellant and respondent No.1 were private individuals and both were claiming their rights ofownership and possession over the flat in question on various factualgrounds – The question as to who is the owner of the flat in question,whether respondent No. 1 was/is in possession of the flat and, if so,from which date, how and in what circumstances, he claimed to beEin its possession, whether his possession could be regarded as legalor not qua its real owner etc. were some of the material questionswhich arose for consideration in the writ petition – These questionswere pure questions of fact and could be answered one way or theother only by the civil court in a properly constituted civil suit andFon the basis of the evidence adduced by the parties but not in a writpetition filed under Art.226 of the Constitution by the High Court –Impugned order set aside – Writ of mandamus.
Allowing the appeal, the Court
HELD: 1. A regular suit is the appropriate remedy forGsettlement of the disputes relating to property rights betweenthe private persons. The remedy under Article 226 of theConstitution shall not be available except where violation of somestatutory duty on the part of statutory authority is alleged. Insuch cases, the Court has jurisdiction to issue appropriateHdirections to the authority concerned. It is held that the High Court cannot allow its constitutional jurisdiction to be used fordeciding disputes, for which remedies under the general law, civilor criminal are available. This Court has held that it is notintended to replace the ordinary remedies by way of a civil suitor application available to an aggrieved person. The jurisdictionunder Article 226 of the Constitution being special andextraordinary, it should not be exercised casually or lightly onmere asking by the litigant. The writ petition to claim such reliefwas not, therefore, legally permissible. It, therefore, deserveddismissal in limine on the ground of availability of an alternativeremedy of filing a civil suit by respondent No. 1 (writ petitioner)in the Civil Court. The High Court, therefore, while so directingexceeded its extraordinary jurisdiction conferred underArticle 226 of the Constitution. Indeed, the High Court ingranting such relief, had virtually converted the writ petition intoa civil suit and itself to a Civil Court. It was not permissible.[Paras 15, 16, 18][978-C-H]
Mohan Pande v. Usha Rani, 1992 (4) SCC 61 : [1992]3 SCR 904 ; Dwarka Prasad Agrawal v. BD Agrawal(2003) 6 SCC 230 : [2003] 1 Suppl. SCR 336 – reliedon
2. There did exist a dispute between the appellantand respondent No. 1 as to who was in possession of the flatin question at the relevant time; Second, a dispute regardingpossession of the said flat between the two private individualscould be decided only by the Civil Court in civil suit orby the Criminal Court in Section 145 Cr.P.C proceedings butnot in the writ petition under Article 226 of the Constitution.[Para 20]
Case Law Reference
[1992] 3 SCR 904[2003] 1 Suppl. SCR 336
relied onPara 15 relied onPara 15
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 11759of 2018.
From the Judgment and Order dated 30.08.2017 of the High Courtof Kerala at Ernakulam in W.P. (C) No. 15385 of 2017.
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976 SUPREME COURT REPORTS [2018] 14 S.C.R.
AHaris Beeran, Mushtaq Salim, Usman Ghani Khan, Radha ShyamJena, Advs. for the Appellant.
R. Basant, Sr. Adv., Ranbir Singh Yadav, Ms.Anzu K. Varkey,Aljo K. Joseph, Ranjith K. C., Nishe Rajen Shonker, Ms. Anu K. Joy,Alim Anvar, Ms. Miranda Solaman, Nebil Nizar,, Advs. for theBRespondents.
The Judgment of the Court was delivered by ABHAY MANOHAR SAPRE, J.
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1. Leave granted.
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C2. This appeal is filed against the final judgment and order dated30.08.2017 passed by the High Court of Kerala at Ernakulam in WritPetition (C) No. 15385/2017 whereby the Division Bench of the HighCourt allowed the writ petition filed by respondent No.1 herein anddirected the appellant herein, by issuing a writ of mandamus, to restoreDthe possession of the flat in question to respondent No.1 herein.
3. Facts of the case lie in a narrow compass. They, however,need mention in brief infra to appreciate the short question involved inthis appeal.
4. The dispute essentially relates to the possession of a flat bearingENo. 3D, 3[rd] floor located in building known as Royal Court-Block IV atKozhikode (hereinafter referred to as “the flat”) and is between theappellant and respondent No. 1 herein.
5. Respondent No. 1 filed a writ petition being W.P.(C) No. 15385of 2017 before the High Court of Kerala against the appellant hereinFand other respondents(local police authorities) seeking therein a relief ofrestoration of his possession over the flat in question. The appellantcontested the writ petition on various factual and legal grounds includingraising an objection about the maintainability of the writ petition and thereliefs claimed therein.
G6. By impugned order, the Division Bench allowed the writ petitionand directed the appellant (respondent No. 5 in the writ petition) to restorethe possession of the flat in question to respondent No. 1 herein (writpetitioner in the High Court) which has given rise to filing of the presentappeal by way of special leave by respondent No. 5 of the writ petitionin this Court.H
7. The short question, which arises for consideration in this appeal,is whether the High Court was justified in entertaining the writ petitionfiled by respondent No. 1 herein and Secondly, whether the High Courtwas justified in issuing a mandamus against the appellant directing himto restore the possession of the flat to respondent No. 1.
8. Heard Mr. Haris Beeran, learned counsel for the appellant andMr. R. Basant, learned senior counsel, Mr. A.K. Joseph and Mr. NisheRajen Shonker, learned counsel for the respondents.
9. Having heard the learned counsel for the parties and on perusalof the record of the case, we are constrained to allow the appeal, setaside the impugned order and dismiss the writ petition filed by respondentNo. 1 herein out of which this appeal arises.
10. In our considered opinion, the writ petition filed by therespondent No. 1 under Article 226/227 of the Constitution of India againstthe appellant before the High Court for grant of relief of restoration ofthe possession of the flat in question was not maintainable and the sameought to have been dismissed in limine as being not maintainable. Inother words, the High Court ought to have declined to entertain the writpetition in exercise of extra ordinary jurisdiction under Article 226/227of Constitution for grant of reliefs claimed therein.
11. It is not in dispute that the reliefs for which the writ petitionwas filed by respondent No. 1 herein against the appellant pertained topossession of the flat. It is also not in dispute that one Civil Suit No. 807/2014 between the appellant and the respondent No. 1 in relation to theflat in question for grant of injunction was pending in the Court of Munsifat Kozhikode. It is also not in dispute that the appellant and the respondentNo. 1 are private individuals and both are claiming their rights ofownership and possession over the flat in question on various factualgrounds.
12. In the light of such background facts arising in the case, weare of the considered opinion that the filing of the writ petition byrespondent No. 1 herein against the appellant herein under Article 226/227 of the Constitution of India in the High Court, out of which thisappeal arises, was wholly misconceived.
13. The question as to who is the owner of the flat in question,whether respondent No. 1 was/is in possession of the flat and, if so,from which date, how and in what circumstances, he claimed to be in its A
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Apossession, whether his possession could be regarded as legal or notqua its real owner etc. were some of the material questions which arosefor consideration in the writ petition.
14. These questions, in our view, were pure questions of fact andcould be answered one way or the other only by the Civil Court in aBproperly constituted civil suit and on the basis of the evidence adducedby the parties but not in a writ petition filed under Article 226 of theConstitution by the High Court.
15. It has been consistently held by this Court that a regular suit isthe appropriate remedy for settlement of the disputes relating to propertyCrights between the private persons. The remedy under Article 226 of theConstitution shall not be available except where violation of some statutoryduty on the part of statutory authority is alleged. In such cases, theCourt has jurisdiction to issue appropriate directions to the authorityconcerned. It is held that the High Court cannot allow its constitutionaljurisdiction to be used for deciding disputes, for which remedies underDthe general law, civil or criminal are available. This Court has held that itis not intended to replace the ordinary remedies by way of a civil suit orapplication available to an aggrieved person. The jurisdiction under Article226 of the Constitution being special and extraordinary, it should not beexercised casually or lightly on mere asking by the litigant. (See MohanEPande vs. Usha Rani, 1992 (4) SCC 61 and Dwarka Prasad Agrawalvs BD Agrawal, (2003) 6 SCC 230).
16. In our view, the writ petition to claim such relief was not,therefore, legally permissible. It, therefore, deserved dismissal in limineon the ground of availability of an alternative remedy of filing a civil suitFby respondent No. 1 (writ petitioner) in the Civil Court.
17. We cannot, therefore, concur with the reasoning and theconclusion arrived at by the High Court when it unnecessarily went intoall the questions of fact arising in the case on the basis of factual pleadingsin detail (43 pages) and recorded a factual finding that it was theGrespondent No. 1 (writ petitioner) who was in possession of the flat and,therefore, he be restored with his possession of the flat by the appellant.
18. In our opinion, the High Court, therefore, while so directingexceeded its extraordinary jurisdiction conferred under Article 226 ofthe Constitution. Indeed, the High Court in granting such relief, hadvirtually converted the writ petition into a civil suit and itself to a CivilHCourt. In our view, it was not permissible.
19. Learned counsel for respondent No. 1, however, strenuouslyurged that the impugned order does not call for any interference becausethe High Court has proceeded to decide the writ petition on admittedfacts.
20. We do not agree with the submissions of learned counsel forrespondent No.1 for the reasons that first there did exist a dispute betweenthe appellant and respondent No. 1 as to who was in possession of theflat in question at the relevant time; Second, a dispute regarding possessionof the said flat between the two private individuals could be decided onlyby the Civil Court in civil suit or by the Criminal Court in Section 145Cr.P.C proceedings but not in the writ petition under Article 226 of theConstitution.
21. In view of the foregoing discussion, we are unable to agreewith the reasoning and the conclusion arrived at by the High Court in theimpugned order.
22. As a consequence, the appeal succeeds and is accordinglyallowed. Impugned order is set aside. The writ petition filed by respondentNo. 1, out of which this appeal arises, stands dismissed.
23. Liberty is, however, granted to the parties to file civilproceedings in the Civil Court for claiming appropriate reliefs in relationto the flat in question for adjudication of their respective claims.
24. We, however, make it clear that while prosecuting any civil/criminal proceedings by the parties, as the case may be, any observationsand the findings recorded by the High Court in the impugned order willnot be looked into because the impugned order has since been set asideby this Court.
Devika Gujral
Appeal allowed.
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