Article 226 or Article 227 of Constitution of India can neither be entertained to decide the landlord-tenant dispute

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 1^st  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.

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.

1.      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 1^st  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 2^nd 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 1^st respondent contended that after purchase the appellant herein attempted to trespass into the property leased to the 1^st respondent and tried to demolish the wall of the room. Hence, the 1^st  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 1^st  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 1^st 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 1^st 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 1^st  respondent contended that under the circumstances, with an intention to evict him, the appellant herein colluded with the 2^nd  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 2^nd  respondent from conducting any prohibited business in the shop room either directly or through someone else. By virtue of the said court’s order, 3^rd  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 1^st 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 1^st respondent who pleaded as follows:

      The appellant has fraudulently filed the suit to harass the 1^st 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 1^st  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 1^st  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:

                i.        “49. There can be no doubt that though Ex.P2 and P3 orders are procured by 1^st  respondent against 2^nd 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.

              ii.        50. It is unfortunate that an argument is raised by learned counsel for 1^st  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.

             iii.        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:

             iv.        “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 recognized 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-recognized  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 2^nd  respondent was with the intention to harass the 1^st  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 2^nd  respondent with intention to misuse the same and harass the 1^st  respondent. If the 1^st  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 1^st  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 1^st  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.

Rejection of Plaint under Order 7 Rule 11C.P.C.

Head Note:

After perusing the order passed by the High Court and the reasoning given therein, it appears to us that the High Court has correctly perused the plaint in its entirety and after deletion of the name of plaintiff No.1 from the said Title Suit, held that the plaint discloses no cause of action after taking into account the fact that the very purpose of the suit has become infructuous in view of the order passed by the High Court to hand over the possession of the rooms in question. Therefore, the foundation of the suit was not subsisting after the handing over of possession to the defendant by plaintiff No.1 in terms of the order.

Now, it is necessary for us to find out whether the plaint discloses any cause of action, after deletion of the name of  plaintiff No. 1 in Title Suit No. 2430 of 2007. We have gone through the averments made in the said plaint. After perusing the averments and on the basis of its entirety and considering that the statements made in the plaint are correct, it appears to us that the plaint discloses no cause of action and thereby it attracts the provisions of Order VII Rule 11(a) of the Code, and accordingly we hold that the High Court has correctly ascertained the position and allowed the said application reversing the order of the City Civil Court at Calcutta.

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No. 4003 of 2014

(Arising out of Special Leave Petition (Civil) No.8578 of 2011)

Soumik Sil                                                                 … Appellant

vs.

Subhas Chandra Sil                                             … Respondent

J U D G M E N T : Pinaki Chandra Ghose, J.

1.      Leave granted.

2.     This appeal is directed against an order passed by the High Court dated February 10, 2011 whereby the application filed by the respondent herein under Order VII Rule 11 of the Code of Civil Procedure (for short ‘the Code’) was allowed and the plaint was rejected. The High Court set aside the order passed by the Trial Court refusing such prayer.

3.    The facts of the case, briefly, are as follows :

3.1.         A suit was filed for declaration and injunction by the appellant along with Smt. Ashima Sen, mother of the present appellant. The appellant herein and plaintiff No.1 (the mother) filed a suit being Title Suit being No.2430 of 2007 before the City Civil Court at Calcutta, and the following reliefs were prayed for in the said suit :

“a) For a decree for declaration that the defendant, his men and agents have no right to obstruct the user of the suit flat by the plaintiffs by any means prejudicial to the interest of the plaintiffs.

b) For a decree permanent injunction restraining the defendants, their men, agents and associated from causing any obstruction towards free ingress and egress of the plaintiffs, for use and occupation of the suit flat at 5, Netai Babu Lane, Kolkata- 700012, in any manner prejudicial to the interst of the plaintiffs.

c) Temporary injunction with ad-interim order in terms of prayer (b) above;

d) Commission;

e) Costs of the suit

f) Any other relief or reliefs as the Ld. Court may deem fit and proper”

3.2.       The said suit was filed on the facts stated in the plaint that plaintiff No. 1 (Smt. Sen) and the defendant – Subhas Chandra Sil were married on 2nd June, 1986. Out of the said wedlock, plaintiff No.2 – Soumik Sil was born on 20th April, 1989. Admittedly, the mother and son resided in the two rooms in the first floor of the premises No.5, Netai Babu Lane, Kolkata-700 012, being the matrimonial home of plaintiff No. 1.

3.3.       Admittedly, the defendant was a joint owner of the said premises along with his two brothers. Subsequently, the eldest brother gifted his 1/3rd share in the said premises to his two brothers, and thereby the defendant and one of his brothers became the owners of the said premises in equal shares. On December 17, 1993 the said property was partitioned between them and the portions were demarcated between the two brothers.

4.     The defendant filed a suit for dissolution of marriage in the City Civil Court at Calcutta which was transferred before the Family Court and on 15th July, 1998 a decree for dissolution of marriage was passed by the Family Court against plaintiff No.1. Being aggrieved, she preferred an appeal before the High Court which, in turn, was pleased to pass the following order :

“In the facts of the present case, we are of the view that a sum of Rs.4,00,000/- should be paid by the husband to the wife provided the wife hands over the vacant possession of the rooms over which she has already filed a suit in the City Civil Court to the husband within a month from today. Simultaneously, with the surrender of possession, the husband will pay a sum of Rs.2,00,000/- by account payee cheque of any nationalised bank in the name of the wife to be handed over to the learned Advocate for the appellant and will pay the balance amount of Rs.2,00,000/- by March, 2009. If the first instalment of Rs.2,00,000/- is paid, from that moment, the husband will pay the monthly alimony at the rate of Rs.2,500/- instead of the existing alimony of Rs.5,000/-. The moment the balance amount of Rs.2,00,000/- will be paid, the husband will not be required to pay any further monthly sum as alimony. If the wife fails to deliver vacant possession of the rooms mentioned above within a month from today, this part of the order granting permanent alimony will stand recalled and the wife would be free to initiate fresh proceedings for fixation of permanent alimony on the basis of the then income of the husband after taking into consideration the conduct of the wife as provided in Section 25 of the Act.

       The decree for divorce is, thus, affirmed with the aforesaid additional direction as regards permanent alimony.”

5.      In these circumstances, in accordance with the said order the wife duly gave effect to the order of the High Court and filed an application before the City Civil Court, Calcutta, for deletion of her name as the plaintiff No.1 from the said suit. In the wake of the above, an application for rejection of plaint under Order VII Rule 11(a) of the Code of Civil Procedure was filed by the defendant (husband/father) and it was stated that the remaining plaintiff had no cause of action to institute the suit against the defendant and that the plaint does not disclose any cause of action.

6.     After hearing the parties, the City Civil Court at Calcutta was pleased to reject the said application on 13th December, 2010. Being aggrieved and dissatisfied with the said order, a revision petition was filed against the said order by Subhas Chandra Sil, being the defendant in the said suit before the High Court. The High Court after perusing the facts as stated hereinabove, and after considering the averments made in the plaint held that after deleting the name of plaintiff No.1 from the plaint, it is clear from the averments that the plaint discloses no cause of action, and accordingly held that plaintiff No.2 has no independent cause of action to proceed with the suit and the handing over of possession of the suit premises is nothing but to carry out an order passed by the High Court and thereby plaintiff No.2 being the son, cannot have any cause of action in the matter. In view of the above, the High Court reversed the order of the trial court, allowed the application and rejected the plaint. Being aggrieved, this appeal has been filed on the ground that the said property is a trust property and that the appellant has a right to reside there as one of the trustees, and that he as a legal heir and son of the respondent, is entitled to reside in the suit property in terms of the trust deed.

7.      It is also to be noted that to assert such right, the appellant herein has already filed a suit before the City Civil Court at Calcutta, being T.S. No. 2451/2008, being a suit for declaration, accounts and permanent injunction and thereby it appears to us that the appellant has already taken steps in the matter to assert his rights and title in respect of the said property in the said suit.

8.     The sole question which arises for our consideration is whether the High Court was right in rejecting the plaint holding that the plaint does not disclose any cause of action.

9.     Learned counsel appearing on behalf of the appellant submitted that the appellant is the son of the respondent and is a trustee of the said trust property and he used to reside at the said premises with his mother. It is further submitted that he has a right to occupy the said premises in terms of the registered deed of settlement. He further stated that in accordance with the deed of settlement, after the death of the original settlor Mrinalini Dassi, the trust property would devolve for the use and benefit of her male heir in the male line in equal shares absolutely and for ever. Therefore, it is contended that he has a right to stay in the said premises, and accordingly submitted that the plaint discloses no cause of action.

10.             Per contra, it is submitted that the possession was handed over by the mother and son pursuant to the directions given by the High Court and the premises were vacated in compliance with the said order. After handing over the possession in terms of the order dated 22nd August, 2008, there was no cause of action subsisting in Title Suit No.2430 of 2007. In these circumstances, it is submitted that the order passed by the City Civil Court, Calcutta, rejecting the said application of the respondent under Order VII Rule 11 is wrong. The ground that the said trial court did not consider that the cause of action in the suit was in connection with the possession of the rooms in question and the said rooms were handed over pursuant to the order passed by the High Court. Therefore, the said cause of action as pleaded in the plaint by the plaintiffs and/or by the son was not subsisting after the order of the High Court. In these circumstances, the High Court correctly reversed the said order by allowing the said application in favour of the respondent after perusing the averments in the plaint. It is further submitted that the appellant is in gross suppression of material facts from this Court that the appellant did institute a suit on the basis of the rights claimed under the said trust deed which is pending for adjudication before the City Civil Court at Calcutta, being Title Suit No.2451/2008. In the plaint the plaintiffs/appellants did not aver that their rights flow from the trust deed as they tried to point out here.

11.   It is necessary for us at this stage to set out the relevant provisions of Order VII Rule 11 of the Code :

“11. Rejection of plaint

The plaint shall be rejected in the following cases:--

a)    where it does not disclose a cause of action;

b)   where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

c)     where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;

d)    where the suit appears from the statement in the plaint to be barred by any law:

e)     where it is not filed in duplicate;

f)       where the plaintiff fails to comply sub-rule (2) of rule 9;

Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature for correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.”

12. After perusing the order passed by the High Court and the reasoning given therein, it appears to us that the High Court has correctly perused the plaint in its entirety and after deletion of the name of plaintiff No.1 from the said Title Suit, held that the plaint discloses no cause of action after taking into account the fact that the very purpose of the suit has become infructuous in view of the order passed by the High Court to hand over the possession of the rooms in question. Therefore, the foundation of the suit was not subsisting after the handing over of possession to the defendant by plaintiff No.1 in terms of the order. Hence, in these circumstances, the High Court held that the plaint discloses no cause of action.

13. Now, it is necessary for us to find out whether the plaint discloses any cause of action, after deletion of the name of plaintiff No. 1 in Title Suit No. 2430 of 2007. We have gone through the averments made in the said plaint. After perusing the averments and on the basis of its entirety and considering that the statements made in the plaint are correct, it appears to us that the plaint discloses no cause of action and thereby it attracts the provisions of Order VII Rule 11(a) of the Code, and accordingly we hold that the High Court has correctly ascertained the position and allowed the said application reversing the order of the City Civil Court at Calcutta.

14. In these circumstances, we do not find any infirmity in the order passed by the High Court. We find no merit in the appeal and the same is, accordingly, dismissed.

…………………………….J.

(Gyan Sudha Misra)

......…………………………J

(Pinaki Chandra Ghose)

New Delhi;

March 25, 2014.