ROSHINA T versus ABDUL AZEEZ K.T. & ORS.

Citation: [2018] 14 S.C.R. 974 · Decided: 03-12-2018 · Supreme Court of India · Bench: ABHAY MANOHAR SAPRE · Disposal: Leave granted

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Judgment (excerpt)

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974                    SUPREME COURT REPORTS            [2018] 14 S.C.R.
ROSHINA T
v.
ABDUL AZEEZ K.T. & ORS.
(Civil Appeal No. 11759 of  2018)
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
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
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
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
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
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
[2018] 14 S.C.R. 974
974
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975
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 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. 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
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]
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
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.
[Para 20]
Case Law Reference
[1992] 3 SCR 904
 relied on
Para 15
[2003] 1 Suppl. SCR 336
 relied on
Para 15
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.
ROSHINA T v. ABDUL AZEEZ K.T. & ORS.
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976                    SUPREME COURT REPORTS            [2018] 14 S.C.R.
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

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