ROSHINA TversusABDUL AZEEZ K.T. & ORS.

974                SUPREME[2018]
                           COURT 14REPORTS
                                   S.C.R. 974               [2018] 14 S.C.R.


A                                  ROSHINA T
                                         v.
                         ABDUL AZEEZ K.T. & ORS.
                        (Civil Appeal No. 11759 of 2018)
B                             DECEMBER 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.1
      related to the possession of flat – One civil suit between the appellant
C
      and respondent No. 1 in relation to the flat in question for grant of
      injunction was pending in the Munsif Court – Appellant and
      respondent No. 1 were private individuals – Writ petition filed by
      respondent no.1 – High Court directed the appellant by issuing a
      writ of mandamus to restore the possession of flat in question to
D     respondent no.1 – On appeal, held: Appellant and respondent No.
      1 were private individuals and both were claiming their rights of
      ownership and possession over the flat in question on various factual
      grounds – 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
E
      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 – 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
F     on the basis of the evidence adduced by the parties but not in a writ
      petition 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 for
G     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
H     directions to the authority concerned. It is held that the High
                                        974
          ROSHINA T v. ABDUL AZEEZ K.T. & ORS.                         975


Court cannot allow its constitutional jurisdiction to be used for      A
deciding disputes, for which remedies under the general law, civil
or criminal are available. This Court has held that it is 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
                                                                       B
extraordinary, it should not be exercised casually or lightly on
mere asking by the litigant. 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. The High Court, therefore, while so directing      C
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. It was not permissible.
[Paras 15, 16, 18][978-C-H]
                                                                       D
      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 – relied
      on
      2. There did exist a dispute between the appellant               E
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.        F
[Para 20]
                      Case Law Reference
[1992] 3 SCR 904                relied on             Para 15
[2003] 1 Suppl. SCR 336         relied on             Para 15          G
      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 11759
of 2018.
     From the Judgment and Order dated 30.08.2017 of the High Court
of Kerala at Ernakulam in W.P. (C) No. 15385 of 2017.
                                                                       H
976                 SUPREME COURT REPORTS                       [2018] 14 S.C.R.


A           Haris Beeran, Mushtaq Salim, Usman Ghani Khan, Radha Shyam
      Jena, 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 the
B     Respondents.
            The Judgment of the Court was delivered by
            ABHAY MANOHAR SAPRE, J.
            1. Leave granted.
C            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) No. 15385/2017 whereby the Division Bench of the 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
D     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 possession of a flat bearing
E     No. 3D, 3rd floor located in building known as Royal Court-Block 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
F     and other 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.
G             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.
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            ROSHINA T v. ABDUL AZEEZ K.T. & ORS.                                 977
                [ABHAY MANOHAR SAPRE, J.]

       7. The short question, which arises for consideration in this appeal,     A
is whether the High Court was justified in entertaining the writ petition
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           B
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       C
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 before the High Court for grant of relief of restoration of
the possession of the flat in question was not maintainable and the same         D
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    E
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              F
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/          G
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          H
978                 SUPREME COURT REPORTS                        [2018] 14 S.C.R.


A     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.
            14. These questions, in our view, were pure questions of fact and
      could be answered one way or the other only by the Civil Court in a
B     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
C     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
D     the general law, civil or criminal are available. This Court has held that it
      is 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
E     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
F     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 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
G     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
H
      Court. In our view, it was not permissible.
                ROSHINA T v. ABDUL AZEEZ K.T. & ORS.                             979
                    [ABHAY MANOHAR SAPRE, J.]

       19. Learned counsel for respondent No. 1, however, strenuously            A
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.
        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     B
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.                                                                    C

       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               D
allowed. Impugned order is set aside. 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.             E
       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.                                                                   F

Devika Gujral                                                  Appeal allowed.




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