In the decision of the case Roshina T v. Abdul Azeez & Others, delivered on December 3, 2018, Justice Abhay Manohar Sapre and Justice Indu Malhotra, have held that, that Kerala High Court ought to have declined to entertain the writ petition in exercise of extra–ordinary jurisdiction under Article 226/227 of the Constitution for grant of reliefs claimed therein.
In the considered opinion of the Supreme Court the petition filed by the first respondent under Article 226/227 of the Constitution of India against the appellant before the HC for grant of relief of restoration of possession of the flat in question was not maintainable and the same ought to have been dismissed in limine as being not maintainable.
It is not in dispute that the reliefs for which the writ petition was filed by the First respondent herein against the appellant pertained to possession of the flat. It is also not in dispute that one civil suit No. 807/2014 between the appellant and the first respondent in relation to 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 the first respondent are private individuals and both are claiming their rights of ownership and possession over the flat in question on various factual grounds.
In the light of such facts arising in the background of the case, the Court has been of the considered opinion that filing of the writ petition by the first respondent herein against the appellant herein under Article 226/227of the Constitution of India in the HC, out of which this appeal arose, was wholly misconceived.
The question as to who is the owner of the flat in question, whether the first respondent was/is in possession of the flat and, if so, from which date, how and in what circumstances, he claimed to be in its possession, whether his possession could be regarded as legal or not qua its real owner etc, were some of the material questions which arose for consideration in the writ petition.
According to the Court, the question as to who is the owner of the flat in question, whether the first respondent was/is in possession of the flat and, if so, from which date, how and in what circumstances, he claimed to be in its possession, whether his possession could be regarded as legal or not qua its real owner etc. were some of the material questions which arose for consideration in the writ petition.
In the Court’s view, these questions were pure questions of fact and could be answered one way or the other only by the Civil Court in a properly constituted civil suit and on the basis of the evidence adduced by the parties but not in a writ petition filed under the Article 226 of the Constitution by the HC.
It has been consistently held by the Supreme Court that a regular civil suit is appropriate remedy for settlement of the disputes relating to property rights between the private persons. The remedy under Article 226 of the Constitution shall not be available except where violation of some statutory duty on the part of statutory authority is alleged.
In such cases, the Court has jurisdiction to issue appropriate directions to the authority concerned. It is held that the HC cannot allow its constitutional jurisdiction to be used for deciding disputes, for which remedies under the general law, civil or criminal are available. The Apex-Court has held that it is not intended to replace ordinary remedies by way of a civil suit or application available to an aggrieved person.
The jurisdiction under Article 226 of the Constitution being special and extraordinary, it should not be exercised casually or lightly on mere asking by the litigant. IN this context, the Court has referred to its judgments in two cases – Mohan Pande v. Usha Rani-(1992) 4 SCC 61 and Dwarka Prasad Agrawal v. B.D.Agrawal – (2003) 6 SCC 230.
In the Court’s view, the writ petition to claim such relief was not, therefore, legally permissible .It, therefore, deserved dismissal in limine on the ground of availability of an alternative remedy of filing a civil suit by the first respondent (writ petitioner) in the Civil Court.
The Court has stated that due to this legal position, it cannot concur with the reasoning and the conclusion arrived at by the HC when it unnecessarily went into all the questions of fact arising in the case on the basis of factual pleadings in detail (43 pages)and recorded a factual finding that it was the first respondent (the writ Petitioner)who was in possession of the flat and, therefore, he be restored with his possession of the flat by the appellant.
In the Court’s opinion, the HC, therefore, while so directing exceeded its extraordinary jurisdiction conferred under Article 226 of the Constitution. Indeed, the HC in granting such relief,had virtually converted the writ petition into a civil suit and itself to a Civil Court. In the Supreme Court’s view it was not permissible.
The Court did not agree to the submission advanced by the first respondent’s counsel that the impugned order does not call for any interference because the HC proceeded to decide the writ petition on admitted facts.
The Court expressed its disagreement with the submission stating that first, there did exist a dispute between the appellant and the first respondent as to who was in possession of the flat in question at the relevant time; Second, a dispute regarding possession of the said flat between the two private individuals could be decided only by the Civil Court in civil suit or by a criminal court in section 145 Cr.P.C. proceedings but not in the writ petition under Article 226 of the Constitution.
In the light of this discussion, the Court stated that it was unable to agree with the reasoning and the conclusion reached by the HC in the impugned order.
As a consequence, the appellant succeeded and accordingly, the Supreme has Court allowed the appeal. The impugned order has been set aside. The Court has dismissed the writ petition, out of which this appeal had arisen.
However, the Court granted liberty to 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.
However, the Court has made it clear that while prosecuting any civil/criminal proceedings by the parties, as the case may be , any observations and the findings recorded by the HC in the impugned order will not be looked into because the impugned order has since been set aside by this Court (Supreme Court).
The Author, Advocate R.S Agrawal has working experience in Journalism and Law spread over several decades in Nagpur, Maharashtra. He is doing legal reporting for several leading newspapers in Nagpur and contributing a weekly Legal Column – ‘Current Trends In Law’ to a more than century-old newspaper “The Hitavada” since more than 25 years.