JACKYversusTINY@ ANTONY & ORS.

                      [2014] 5 S.CR. 85


                             JACKY                                   A
                                v.
                  TINY@ ANTONY & ORS.
               (Civil Appeal No. 4453 of 2014)
                        APRIL 9, 2014
                                                                     B
       [SUDHANSU JYOTI MUKHOPADHAYA AND
                 S.A. BOBDE JJ.]

     CONSTITUTION OF IND/A, 1950:

      Arts. 226 and 227 - Jurisdiction of High Court - Writ
                                                                     c
petition seeking to quash orders passed by Munsiff Court in
a suit arising out of landlord and tenant dispute - Held: A
petition under Art. 226 or Art. 227 can neither be entertained
to decide the landlord-tenant. dispute nor is it maintainable
                                                                     0
against a private individual to determine an intense dispute
including the question whether one party has been harassing
the other party -- It was not the case of first respondent that
the order passed by Munsiff Court was without any jurisdiction
or was so exercised exceeding its jurisdiction -- If a suit is not
maintainable, it is well within the jurisdiction of High Court to    E
decide the same in appropriate proceedings but in no case
power under Arts. 226 and 227 can be exercised to question
a plaint - If first respondent was aggrieved against orders which
were passed by courts in one or other suit against a third party
(second respondent) and to which first respondent was not a          F
party, he was not remediless and could have challenged the
same before an appropriate forum - Impugned judgment and
order passed by High Court is set aside - Suit.

    During the pendency of two suits (O.S. No. 2881 of               G
2006 and O.S. No. 2180 of 201 O) filed by the first
respondent and his mother as tenants of a shop, claiming
permanent injunction against the landlords and the
appellant, who claimed himself to be the purchaser of the
                               85                                    H
    86       SUPREME COURT REPORTS              [2014) 5 S.C.R.

A said shop, the appellant filed O.S. No. 2426 of 2010 in the
  Court of Munsiff against respondent no. 1, his mother and
  his brothers claiming absolute title over the property. It
  was the case of first respondent that the appellant filed
  another O.S. No. 1654 of 2011 in collusion with
8 respondent no. 2, whereupon the Municipal Corporation
  (respondent no.3) issued a notice to respondent no. 2 to
  close the business in the shop in question. Respondent
  no.1 then filed Original Petition (C) No. 1792 of 2011
  praying inter alia to call for the original records of O.S. No.
C 1654 of 2011 pending before the Munsiff Court, and to
  quash its plaint. The High Court set aside the plaint and
  further proceedings initiated on the basis of the plaint in
  the suit, quashed the order passed by the Court of
  Munsiff and imposed a cost of Rs. 25,000/- on the
  appellant to be paid to respondent no. 1 writ petitioner.
D
       In the instant appeal, the question for consideration
  before the court was: whether the High Court while
  exercising its power under Arts. 226 and 227 of the
  Constitution of India was competent to set aside the
E plaint?

         Allowing the appeal, the Court

      HELD: 1.1 The question whether the one or other
  order procured by the appellant against the second
F respondent was with the intention to harass the first
  respondent is a question of fact which can be determined
  on the basis of evidence. There is no such issue framed
  nor any evidence brought on record to suggest that the
  orders, Exts. P2 and P3, were obtained by the appellant
G against the second respondent with intention to misuse
  the same and harass the respondent no. 1. If respondent
  no. 1 was aggrieved against the orders contained in Exts.
  P2 and P3 which were passed by the courts In one or
  other suit against a third party (2nd respondent) and to
H which respondent no. 1 was not a party, he was not
         JACKY v. TINY @ ANTONY & ORS.                   87

remediless and could have challenged the same before A
an appropriate forum. [para 16] [93-G-H; 94-A-B]

    1.2 A petition under Art. 226 or Art. 227 of
Cons~itution of India can neither be entertained to decide
the landlord-tenant dispute nor is it maintainable against
                                                               8
a private individual to determine an intense dispute
including the question whether one party has been
harassing the other party. The High Court under Art. 227
has the jurisdiction to ensure that all subordinate courts
as well as statutory or quasi-judicial tribunals, exercise C
the powers vested in them within the bounds of their
authority but it was not the case of the first respondent
that the order passed by the Munsiff Court was without
any jurisdiction or was so exercised exceeding its
jurisdiction. If a suit is not maintainable it was well within
the jurisdiction of the High Court to decide the same in D
appropriate proceedings but in no case power under Arts.
226 and 227 can be exercised to question a plaint. [para
17] [94-8-E]

     Shalini Shyam Shetty and another v. Rajendra Shankar E
                        =
Patil 2010 (8) SCR 836 (2010) 8 sec 329 - relied on.

     Jai Singh and others v. Municipal Corporation of Delhi
and another 201 o (12) SCR 358      =(201 O) 9 sec 385 -
referred to.
                                                              F
    1.3 The impugned judgment and order dated
27.10.2011 passed by the High Court 'in O.P.(C) No.1792
of 2011 is set aside. [para 18] [94-F]
                    Case Law Reference:                       G
    2010 (8) SCR 836         relied on            para 14
    2010 (12) SCR 358        referred to          para 15

                                                              H
     88       SUPREME COURT REPORTS                [2014] 5 S.C.R.


A        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
     4453 of 2014.
         From the Judgment and Order dated 27.10.2011 of the
     High Court of Kerala at Ernakulam in OPC No. 1792 of 2011.
B        Sidhartha Dave, Sajith P. Warrier, Jeti Ben, Achu Ann
     Michaeal for the Appellant.

          Roy Abraham, Raji Joseph, Chandrani Prasad, Himinder
     Lal for the Respondents.
·c
          The Judgment of the Court was delivered by

         SUDHANSU JYOTI MUKHOPADHAYA, J. 1. Leave
     granted.

o      2. This appeal has been preferred by the plaintiff-appellant
  against the judgment and order dated 27 .10.2011 passed by
  the High Court of Kerala at Ernakulam in O.P. (C) No.1792 of
  2011. By the impugned judgment and order, the High Court
  while exercising its power under Articles 226 and 227 of the
E Constitution of India, set aside the plaint and further
  proceedings initiated on the basis of the plaint in the suit,
  quashed the order passed by the Munsiff Court and imposed
  cost of Rs.25,000/- on the appellant for payment in favour of
  the respondent-writ petitioner.
F          3. The only question which is required to be determined
     in this case is whether the High Court while exercising its power
     under Articles 226 and 227 of the Constitution of India is
     competent to set aside the plaint ?
G       4, The case of the 1st respondent herein before the High
   Court was that the shop bearing no. X/306 was leased to the
   father of the 1st respondent in the year 1962 by an oral lease
   by the father of the 2nd respondent, namely, Akkarappatty Jose.
   After the death of the father of the 1st respondent, the appellant
 H herein, his brothers and mother continued as tenants of the
           JACKY v. TINY @ANTONY & ORS.                       89
        [SUDHANSU JYOTI MUKHOPADHAYA, J.]

shop. They are running a business of Photostat, telephone           A
booth, fax, lamination etc. in the said shop. After the death of
the father of the 2nd respondent, his property devolved upon
his children.

      5. A partition suit is stated to be pending in the S.ub Court, B
Thrissur bearing O.S. No. 891 of 2000 with respect to the
property of the father of the 2nd respondent in which the building
is the subject matter. Against the prelin:iinary decree in the
above said suit an appeal is said to be pending before the High
Court of Kerala. Further case of the 1st respondent was that C
since the children of Mr. Akkarappatty Jose tried to trespass
into the property, he and his mother filed O.S. No. 2881 of 2006
before the Munsiff Court, Thrissur for injunction restraining them
from forcefully evicting them from the property and it was
decreed in their favour by decree and judgment dated
16.10.2008.                                                          D

       6. The case of the appellant is that the schedule shop was
  purchased by the appellant vide deeds dated 26.5.2010 and
  on 16.2.2011 from the children of Mr. Akkarrapatti Jose. The
· 1st respondent contended that after purchase the appellant E
  herein attempted to trespass, into the property leased to the 1st·
  respondent and tried to demolish the wall of the room. Hence,
  the 1st respondent and his mother filed O.S. No. 2180 of 2010
  before the Munsiff Court, Thrissur for injunction and the same
  is pending.                                                        F

      7. The appellant herein filed O.S. No. 2426 of 2010 before
the Munsiff Court, Thrissur against the 1st respondent, his
mother and his brothers claiming absolute title over the
property. According to the 1st respondent, he was harassed
by the Sub Inspector of Police, Thrissur and against the same G
he filed representation before the higher authorities since they
have not taken any action, Writ Petition (C) No. 36924 of 2010
was filed by him before the High Court of Kerala and the same
is pending without any orders.
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    90       SUPREME COURT REPORTS                 [2014] 5 S.C.R.


A       8. Further case of the 1st respondent was that the
  appellant herein has filed an affidavit in O.S. No. 2180 of 2010
  pending before the Munsiff Court, Thrissur making an
  undertaking that he would not forcefully dispossess the 1st
  respondent from the property. Even though there is an
B undertaking given by the appellant herein, the appellant
  continued to harass the 1st respondent. Therefore, the 1st
  respondent moved before the High Court of Kerala by filing
  W.P. (C) No. 12638 of 2011 for police protection. In the said
  case, interim order was passed by the High Court on 26.4.2011
c directing the authorities to protect 1st respondent and his
  siblings to carry on the business in the shop room. Thereafter
  the High Court disposed of the W.P (C) No. 12638 of 2011 by
  making the interim order absolute.

       9. The 1st respondent contended that under the
D circumstances, with an intention to evict him, the appellant
  herein colluded with the 2nd respondent filed O.S. No. 1654
  of 2011 before the Munsiff Court, Thrissur on 6.5.2011. The
  Munsiff Court, Thrissur by an interim order dated 27.5.2011
  injuncted the 2nd respondent from conducting any prohibited
E business in the shop room either directly or through someone
  else. By virtue of the said court's order, 3rd respondent herein
  Thrissur Municipal Corporation issued notice on 1.6.2011 to
  the 2nd respondent directing him to close the business in the
  shop room. The 1st respondent, thereafter, moved before the
F High Court of Kerala by filing Original Petition (C) No. 1792 of
  2011 praying inter alia to call for the original records of the O.S.
  No. 1654 of 2011 pending before 'the Munsiff Court, Thrissur
  and to quash the plaint filed by the appellant in the civil suit.
  On notice, the appellant appeared and filed counter affidavit
G before the High Court assailing the very maintainability of the
  original petition. On hearing the parties, the High Court passed
  the impugned judgment and order on 27.10.2011.

         10. While according to the appellant Writ Petition under
    Articles 226 and 227 of the Constitution of India was not
H
          JACKY v. TINY @ANTONY & ORS.                           91
       [SUDHANSU JYOTI MUKHOPADHAYA, J.]
maintainable to quash the plaint or the suit proceedings and/ A
or the injunction order passed by the trial Court, per contra
according to the 1st respondent it was open to the High Court
to issue such writ on being satisfied that the order obtained by
the appellant was by deceitful means in order to harm the 1st
respondent.                                                      B

     11. From the impugned order, we find that the appellant
challenged the very maintainability of the writ petition and
argued that the writ petition was not maintainable to quash any
plaint or a civil suit. The High Court noticed the stand taken by C
the 1st respondent who pleaded as follows: The appellant has
fraudulently filed the suit to harass the 1st respondent and to
ensure that the business run in the shop is closed down. The
said suit was filed by the appellant after having failed in all illegal
attempts to evict the 1st respondent from the shop room which
was in his possession as a tenant for a very long time. The D
appellant deliberately and fraudulently omitted to have implead
the 1st respondent as a defendant to the suit in order to obtain
an order from the court so that it could be misused to cause
Municipal Corporation to pass an order to close down the shop.
                                                                        E
     12. The High Court having noticed the rival conteri'tions
accepted the plea taken by the 1st respondent and observed
as follows:

     "49. There can be no doubt that though Ex.P2 and P3
     orders are procured by 1st respondent against 2nd F
     respondent, those are .intended to be misused to harass
     petitioner. It is also clear that those orders are obtained
     to ensure that petitioner's shop and the business run by
     him for very long period are closed down. The means and
     methods adopted by 1st respondent to obtain Ex.P2 and G
     P3 orders are most undesirable and those cannot be
     approved by any court.
   · 50. It is unfortunate that an argument is raised by learned
     counsel for 1st respondent that Ex P2 and Ex P3 orders H
    92       SUPREME COURT REPORTS                  [2014] 5 S.C.R.


A        are passed against 2nd respondent and not against
         petitioner and hence, petitioner has no locus standi etc. A
         person who has obtained an order from a court, on the
         basis of pleading of facts which are false to his own
         knowledge, without making the person who is actually
B        targeted a party to the proceeding with the sole intention
         to misuse the order against him, the former shall not be
         heard to say that the latter has not locus standi to challenge
         such order, only on the ground that the order is passed
         against some other person and not the targeted person.
c        51. If the court is satisfied that an order is obtained by any
         person by deceitful means to harm another, it can even suo
         motu undo the harm. So the question of locus standi etc.
         is not very relevant in cases of this type. At any rate, no
         person shall be permitted by the court to take undue
D        advantage of his own dishonesty and contend that the other
         party who is illegally wounded by him has no locus standi.
         He has no right to request the court to show a red signal
         to the other who rushes to the court for justice."

E        13. In view of such observations, the High Court allowed
    the writ petition and quashed the plaint and other orde.rs.

        14. The maintainability of writ petition in a matter of
  landlordtenant dispute was considered by this Court in Shalini
  Shyam Shetty and another v. Rajendra Shankar Patil, (2010)
F 8 sec 329. In the said case, this Court noticed the scope of
  interference by the High Court in civil matters/private disputes
  under Article 226 of the Constitution of India and held that the
  High Court committed an error in entertaining writ petition in a
  dispute between landlord and tenant and where the only
G respondent is a private landlord.
       15. Nature and scope of power under Article 227 of the
    Constitution of India was considered by this Court in Jai Singh
    and others v. Municipal Corporation of Delhi and another,
H (2010) 9 sec 385. In the said case, this Court held:
          JACKY v. TINY @ ANTONY & ORS.                        93
       [SUDHANSU JYOTI MUKHOPADHAYA, J.]
     "15. We have anxiously considered the submissions of             A
     the learned counsel. Before we consider the factual and
    legal issues involved herein, we may notice certain
     wellrecognised principles governing the exercise of
    jurisdiction by the High Court under Article 227 of the
     Constitution of India. Undoubtedly the High Court, under         B
     this article, has the jurisdiction to ensure that all
     subordinate courts as well as statutory or quasi-judicial
     tribunals, exercise the powers vested in them, within the
    bounds of their authority. The High Court has the power
    and the jurisdiction to ensure that they act in accordance        c
     with the we/I-established principles of law. The High Court
    is vested with the powers of superintendence and/or
    judicial revision, even in matters where no revision or
    appeal lies to the High Court. The jurisdiction under this
     article is, in some ways, wider than the power and               0
    jurisdiction under Article 226 of the Constitution of India.
     It is, however, well to remember the we/I-known adage that
    greater the power, greater the care and caution in
     exercise thereof. The High Court is, therefore, expected.
     to exercise such wide powers with great care, caution and        E
     circumspect-ion. The exercise of jurisdiction, must be
     within the well-recognised constraints. It can not be
     exercised like a "bull in a china shop", to correct all errors
     of judgment of a court, or tribunal, acting within the limits
     of its jurisdiction. This correctional jurisdiction can be
     exercised in cases where orders have been passed in              F
    grave dereliction o.f duty or in flagrant abuse of
     fundamental principles of law or justice."

     16. The question whether the one or other order procured
by the appellant against the 2nd respondent was with the              G
intention to harass the 1st respondent is a question of fact which
can by determined on the basis of evidence. There is no such
issue framed nor any evidence brought on record to suggest
Ex. P2 and P3 the orders obtained by the appellant against the
2nd respondent with intention to misuse the same and harass           H
   94        SUPREME COURT REPORTS                 [2014] 5 S.C.R.


A the 1st respondent. If the 1st respondent was aggrieved against
  the orders contained in Ex.P2 and P3 which were passed by
  the courts in one or other suit against a third party (2nd
  respondent) and to which 1st respondent was not a party, he
  was not remediless and could have challenged the same before
B an appropriate forum.

        17. A petition under Article 226 or Article 227 of
  Constitution of India can neither be entertained to decide the
  landlord-tenant dispute nor it is maintainable against a private
C individual to determine an intense dispute including the question
  whether one party harassing the other party. The High Court
  under Article 227 has the jurisdiction to ensure that all
  subordinate courts as well as statutory or quasi-judicial
  tribunals, exercise the powers vested in them within the bounds
  of their authority but it was not the case of the 1st respondent
D that the order passed by the Munsiff Court was without any
  jurisdiction or was so exercised exceeding its jurisdiction. If a
  suit is not maintainable it was well within the jurisdiction of the
  High Court to decide the same in appropriate proceedings but
  in no case power under Articles 226 and 227 of Constitution
E of India.can be exercised to question a plaint.

       18. For the reasons aforesaid, we set aside the impugned
  judgment and order dated 27.10.2011 passed by the High
  Court of Kerala at Ernakulam in O.P.(C) No.1792 of 2011 and .
F allow the appeal.

   Rajendra Prasad                                    Appeal allowed.