Bombay High Court
Amar Lifespace Llp And Anr vs Union Of India And 2 Ors on 30 August, 2021
Bench: K.K. Tated, P. K. Chavan
25-WPL-14777-21.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO.14777 OF 2021
Amar Lifespace LLP & Anr. ] Petitioners.
Vs.
Union of India & Ors. ] Respondents.
.....
Mr.Venkatesh Dhond, Sr.Adv. a/w Mr. Yadunath Chaudhari, Mr.
Chinmay Acharya i/b Kevin Pereira for petitioners.
Mr. R. V. Govilkar a/w Mr. Ajinkya Badar for respondent no.1.
Mr. Pralhad Paranjape with Ms Druti Datar for respondent no.2.
.....
CORAM : K.K. TATED &
PRITHVIRAJ K. CHAVAN, JJ.
DATE : 30 AUGUST, 2021.
P.C.
1. Heard learned Counsel for parties.
2. By this petition under Article 226 of the Constitution of India,
petitioner is seeking direction against respondent nos.2 and 3 to quit
and vacate suit property and hand over vacant and peaceful
possession to the petitioners.
Chitra Sonawane 1 of 4
::: Uploaded on - 02/09/2021 ::: Downloaded on - 09/10/2021 23:51:10 :::
25-WPL-14777-21.doc
3. Learned counsel Mr.Paranjape appearing on behalf of
respondent nos.2 raised objection about maintainability of the
petition. He submits that for same cause of action petitioner filed
T.E. & R Suit no.135/169/2009 before Small Causes Court at Bombay
Bandra Branch on 06.11.2009.
4. In that suit also petitioner is seeking vacant and peaceful
possession of the land bearing survey no.61/B admeasuring 1604
sq.yds. at Andheri. In support of his contention, learned Counsel for
respondent no.2 relies on the judgment of Supreme Court reported in
(2019) 2 SCC 329 in the case of Roshina T. Vs. Abdul Azeez K.T. and
Ors. Paragraphs 9, 10, 11, 17 and 20 of the said Judgment reads
thus;
9. In our considered opinion, the writ petition filed
by respondent no.1 under Articles 226/227 of the
Constitution of India against the appellant before the
High Court for grant of relief of restoration of the
possession of the flat in question was not maintainable
and the same ought to have been dismissed in limine as
being not maintainable. In other words, the High Court
ought to have declined to entertain the writ petition in
exercise of extraordinary jurisdiction under Articles
226/227 of the Constitution for grant of reliefs claimed
therein.
10. It is not in dispute that the reliefs for which the
writ petition was filed by respondent no.1 herein against
the appellant pertained to possession of the flat. It is
also not in dispute that one Civil Suit no.807 of 2014
between the appellant and respondent 1 in relation to
Chitra Sonawane 2 of 4
::: Uploaded on - 02/09/2021 ::: Downloaded on - 09/10/2021 23:51:10 :::
25-WPL-14777-21.doc
the flat in question for grant of injunction was pending
in the Court of Munsif at Kozhikode . It is also not in
dispute that the appellant and respondent 1 are private
individuals and both are claiming their rights of
ownership and possession over the flat in question on
various factual grounds.
11. In the light of such background facts arising in the
case, we are of the considered opinion that the filling of
the writ petion by respondent 1 herein against the
appellant herein under Articles 226/227 of the
Constitution of India in the High Court, out of which
this appeal arises, was wholly misconceived.
17. In our opinion, the High Court, therefore, while so
directing exceeded its extraordinary jurisdiction
conferred under Article 226 of the Constitution. Indeed,
the High Court in granting such relief, had virtually
converted the writ petition into a civil suit and itself to a
civil court. In our view, it was not permissible.
20. In view of the foregoing discussion, we are unable
to agree with the reasoning and the conclusion arrived
at by the High Court in the impugned order. As a
consequence, the appeal succeeds and is accordingly
allowed. The impugned order is set aside. The writ
petition filed by respondent 1, out of which this appeal
arises, stands dismissed. Liberty is, however, granted ot
the parties to file civil proceedings in the civil court for
claiming appropriate reliefs in relation to the flat in
question for adjudication of their respective claims.
5. Learned Senior Counsel appearing on behalf of the petitioner
submits that though recording of oral evidence is substantially
completed in T.E & R. Suit no.135/169/2009, it may take some time
for final disposal. He submits that in the interest of justice this Court
be pleased to expedite hearing of that Suit. He submits that he
Chitra Sonawane 3 of 4
::: Uploaded on - 02/09/2021 ::: Downloaded on - 09/10/2021 23:51:10 :::
25-WPL-14777-21.doc
received instructions from the learned Advocate on record to
withdraw the petition. To that effect, he has given in writing. Same
is taken on record and accepted.
6. Considering the submissions on behalf of the petitioner and the
fact that alternate efficacious remedy is available to the petitioner
and matter is pending before Small Causes Court. Hence, following
order is passed.
:ORDER:
a) Writ Petition stands dismissed as withdrawn.
b) Hearing of T.E. & R. Suit no.135/169/2009 pending
before Small Causes Court at Mumbai (Bandra Branch)
is expedited.
c) All contentions of both the parties are kept open.
[PRITHVIRAJ K. CHAVAN, J.] [K. K. TATED, J.]
Chitra Sonawane 4 of 4
