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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 ? Apex court held No= JACKY …. APPELLANT VERSUS TINY @ ANTONY & ORS. ….RESPONDENTS= 2014 (April.Part) judis.nic.in/supremecourt/filename=41404

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 ? Apex court held No=

 

 The High Court while exercising its power under Articles 226 and 227 of  the

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.=

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 ?=

 whether the one or other order procured by the  appellant

against the 2nd  respondent  was  with  the  intention  to  harass  the  1st

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 Ex. P2 and P3 the orders obtained by the  appellant  against  the

2nd respondent with  intention  to  misuse  the  same  and  harass  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 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 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  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

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 allow the appeal.

2014 (April.Part) judis.nic.in/supremecourt/filename=41404

SUDHANSU JYOTI MUKHOPADHAYA, S.A. BOBDE

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4453 OF 2014
(arising out of SLP(C)No.3909 of 2012)

JACKY …. APPELLANT

VERSUS

TINY @ ANTONY & ORS. ….RESPONDENTS

J UD G M E N T

SUDHANSU JYOTI MUKHOPADHAYA, J.
Leave granted.

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
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.

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 ?

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 herein, his brothers and mother continued as
tenants of the shop. They are running a business of Photostat, telephone
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 Sub Court, 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 preliminary 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 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.

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 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.

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 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.

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
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 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 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
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 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 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 maintainable to quash the plaint
or the suit proceedings and/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.

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 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 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.
12. The High Court having noticed the rival contentions 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 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 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 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
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.
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 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.”

 

13. In view of such observations, the High Court allowed the writ
petition and quashed the plaint and other orders.
14. The maintainability of writ petition in a matter of landlord-tenant
dispute was considered by this Court in Shalini Shyam Shetty and another v.
Rajendra Shankar Patil, (2010) 8 SCC 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 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, (2010) 9 SCC 385. In the said case, this
Court held:
“15. We have anxiously considered the submissions of the learned
counsel. Before we consider the factual and legal issues involved
herein, we may notice certain well-recognised principles governing the
exercise of jurisdiction by the High Court under Article 227 of the
Constitution of India. Undoubtedly the High Court, under 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 with
the well-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 jurisdiction under Article 226 of the Constitution of India. It
is, however, well to remember the well-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 circumspection. 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 grave dereliction of 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 intention to harass the 1st
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 Ex. P2 and P3 the orders obtained by the appellant against the
2nd respondent with intention to misuse the same and harass 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 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 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 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
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 allow the appeal.
………..………………………………………..J.
(SUDHANSU JYOTI MUKHOPADHAYA)

 

 
………………………………………………….J.
(S.A. BOBDE)

NEW DELHI;
APRIL 9, 2014.
———————–
8

 

 

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