Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.11759 OF 2018
(Arising out of S.L.P.(C) No. 30465 of 2017)
Roshina T ….Appellant(s)
VERSUS
Abdul Azeez K.T. & Ors. ….Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1. Leave granted.
2. This appeal is filed against the final judgment
and order dated 30.08.2017 passed by the High
Court of Kerala at Ernakulam in Writ Petition (C)
Signature Not Verified
Digitally signed by
ANITA MALHOTRA
Date: 2018.12.03
17:00:37 IST
Reason:
No. 15385/2017 whereby the Division Bench of the
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High Court allowed the writ petition filed by
respondent No.1 herein and directed the appellant
herein, by issuing a writ of mandamus, to restore
the 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 in this
appeal.
4. The dispute essentially relates to the
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possession of a flat bearing No. 3D, 3 floor located
in building known as Royal CourtBlock IV at
Kozhikode (hereinafter referred to as “the flat”) and
is between the appellant and respondent No. 1
herein.
5. Respondent No. 1 filed a writ petition being
W.P.(C) No. 15385 of 2017 before the High Court of
Kerala against the appellant herein and other
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respondents(local police authorities) seeking therein
a relief of restoration of his possession over the flat
in question. The appellant contested the writ
petition on various factual and legal grounds
including raising an objection about the
maintainability of the writ petition and the reliefs
claimed therein.
6. By impugned order, the Division Bench
allowed the writ petition and directed the appellant
(respondent No. 5 in the writ petition) to restore the
possession of the flat in question to respondent No.
1 herein (writ petitioner in the High Court) which
has given rise to filing of the present appeal by way
of special leave by respondent No. 5 of the writ
petition in this Court.
7. The short question, which arises for
consideration in this appeal, is whether the High
Court was justified in entertaining the writ petition
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filed by respondent No. 1 herein and Secondly,
whether the High Court was justified in issuing a
mandamus against the appellant directing him to
restore the possession of the flat to respondent
No. 1.
8. Heard Mr. Haris Beeran, learned counsel for
the appellant and Mr. R. Basant, learned senior
counsel, Mr. A.K. Joseph and Mr. Nishe Rajen
Shonker, learned counsel for the respondents.
9. Having heard the learned counsel for the
parties and on perusal of the record of the case, we
are constrained to allow the appeal, set aside the
impugned order and dismiss the writ petition filed
by respondent No. 1 herein out of which this appeal
arises.
10. In our considered opinion, the writ petition
filed by the respondent No. 1 under Article 226/227
of the Constitution of India against the appellant
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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
extra ordinary jurisdiction under Article 226/227 of
Constitution for grant of reliefs claimed therein.
11. 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. 807/2014 between the appellant and the
respondent No. 1 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 respondent No. 1 are private
individuals and both are claiming their rights of
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ownership and possession over the flat in question
on various factual grounds.
12. In the light of such background facts arising in
the case, we are of the considered opinion that the
filing of the writ petition by respondent No. 1 herein
against the appellant herein under Article 226/227
of the Constitution of India in the High Court, out of
which this appeal 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 possession, whether his possession could be
regarded as legal or not its real owner etc. were
qua
some of the material questions which arose for
consideration in the writ petition.
14. These questions, in our view, were pure
questions of fact and could be answered one way or
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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 Article 226 of the Constitution
by the High Court.
15. It has been consistently held by this Court that
a regular suit is the 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 High Court cannot allow its constitutional
jurisdiction to be used for deciding disputes, for
which remedies under the general law, civil or
criminal are available. This Court has held that it is
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not intended to replace the 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. (See
Mohan Pande vs.
Usha Rani , 1992 (4) SCC 61 and Dwarka Prasad
Agrawal vs 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 limine on the
ground of availability of an alternative remedy of
filing a civil suit by respondent No. 1 (writ
petitioner) in the Civil Court.
17. We cannot, therefore, concur with the
reasoning and the conclusion arrived at by the High
Court when it unnecessarily went into all the
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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 respondent 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 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.
19. Learned counsel for respondent No. 1,
however, strenuously urged that the impugned
order does not call for any interference because the
High Court has proceeded to decide the writ petition
on admitted facts.
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20. We do not agree with the submissions of
learned counsel for respondent No.1 for the reasons
that first there did exist a dispute between the
appellant and respondent No. 1 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
the Criminal Court in Section 145 Cr.P.C
proceedings but not in the writ petition under
Article 226 of the Constitution.
21. 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.
22. As a consequence, the appeal succeeds and is
accordingly allowed. Impugned order is set aside.
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The writ petition filed by respondent No. 1, out of
which this appeal arises, stands dismissed.
23. Liberty is, however, granted 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.
24. We, however, make 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 High Court in the
impugned order will not be looked into because the
impugned order has since been set aside by this
Court.
………...................................J.
[ABHAY MANOHAR SAPRE]
…...……..................................J.
[INDU MALHOTRA]
New Delhi;
December 03, 2018
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