& Anr Vs. Smt. Usha Rani Rajgaria & Ors  INSC 199 (19 August 1992)
L.M. (J) Sharma, L.M. (J) Rangnathan, S.
1993 AIR 1225 1992 SCR (3) 904 1992 SCC (4) 61 JT 1992 (4) 572 1992 SCALE
of India, 1950:
226- Writ jurisdiction of High Court-Special and extraordinary-Not to be
exercised casually and lightly- Not to be used for enforcement of a private
right to immovable property claimed by and against private individuals- Not to
replace ordinary remedies available by way of suit, application etc. under the
the pendency of a suit for eviction of the appellants from the property of
Respondent No.1, the appellants were alleged to have trespassed beyond the area
which was the subject matter of the suit and indulged in several illegal
activities. Thus according to Respondents, the appellants were guilty of
mischievous conduct. The Respondents instead of filing a suit in the Civil
Court or making appropriate prayer for amendment of the plaint in the pending
suit field a Writ Petition before the High Court for issuance of appropriate
direction retraining the appellants from disturbing the lawful possession of
Administration and Commissioner of Police were also impleaded as parties and a
direction sought against them not to register any further false and vexatious
complaints against the Respondents since undue Police help to the appellants
High Court gave certain directions to the appellants as regards Respondents'
access to the backyard.
present appeal by special leave, is against the said orders of the High Court.
question whether the Writ jurisdiction of High Court would be available for
enforcement of a private right to immovable property claimed by and against
the appeals, this Court
1. A regular suit is the appropriate remedy for settlement 905 of disputes
relating to property rights between private persons and that 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. And in
such a case, the Court will issue appropriate direction to the authority
concerned. [907 E, F]
the real grievance of Respondent No.1 is against the initiation of criminal
proceeding and the orders passed and steps taken thereon, she must avail of the
remedy under the general law including the Criminal Procedure Code. The High
Court cannot allow the constitutional jurisdiction to be used for deciding
disputes, for which remedies under the general law, civil or criminal, are
available. It is not intended to replace the ordinary remedies by way of a suit
or application available to a litigant. The jurisdiction is special and
extra-ordinary and should not be exercised casually or lightly, [907 F-H]
APPELLATE JURISDICTION: Civil Appeal No. 3284 of 1992 From the Judgement and
Order dated 18.2.1992 of the Delhi High Court in Civil Writ Petition No. 2259
K.L. Vohra, Rajeev Sharma and D.K. Garg for the Appellants.
V.B. Saharya, Ashok Bhan and B.K. Prasad for the Respondents.
of the Court was delivered by SHARMA,J. Heard the learned counsel for the
leave is granted.
respondents in this appeal have successfully invoked the jurisdiction of the
High Court under Article 226 of the Constitution for enforcement of a private
right to immovable property against the appellants who are two brothers and who
are resisting the claim. The question is as to whether the writ jurisdiction in
the High Court is available for the enforcement of such a right claimed by and
against private individuals.
The dispute relates to a house-property in Delhi.
for eviction of the appellants from the building is pending in the trial court.
According to the case of the respondent no. 1, who is the owner of the
property, she had let out the same to one Shri B.K. Pandey who later illegally
handed over the possession thereof to the appellant no.1.
to the further case of the respondent, the portion of the said house-property
which is subject matter of the present case is beyond the purview of the
occasion for initiating the present proceeding with respect to this portion
arose, it is said, on account of the high-handedness of the appellants who
illegally trespassed beyond the area which is the subject matter of the pending
suit, and indulged in several illegal activities. In other words, the
appellants are trespassers and are guilty of mischievous conduct. However,
instead of filing a suit in the civil court or making an appropriate prayer for
amendment of her plaint in the pending suit, she through respondent no.2
holding power of attorney, approached the High Court directly by a writ
petition under Article 226 for issuance of appropriate direction restraining
the appellants from disturbing the lawful possession of the respondents.
Delhi Administration and the Commissioner of Police, Delhi, were also impleaded as parties
with a prayer that appropriate order should be issued against them also and
they should be directed not to register any further false and vexatious
complaint against them at the instance of the appellants. It is her case that
the appellants have been getting undue police help and are being encouraged to
commence frivolous criminal cases against respondent no.1 and her agent.
appellants denied the allegations of fact made against them and also challenged
the maintainability of the writ petition.
Although the fact that a suit between the parties was already pending in the
civil court was known to the High Court, it proceeded to pass a short order
is already a civil suit pending between the parties. Except the prayer in
regard to access to the backyard, no other relief can be granted in this writ
direct respondents 3 and 4 to remove the grill for access 907 to the backyard
in the presence of the police and representatives of the petitioners on Sunday, 23rd February 1922 at 11.00 a.m. so that the access of the petitioner to the servants
quarters is not stopped."
Arun Jaitley, the learned counsel appearing on behalf of respondent no. 1 has
supported the impugned judgement on the ground that prayer for issuing a
direction against Delhi Administration and Commissioner of Police who were
respondent nos. 1 and 2 was also made. It has to be appreciated that the
present appellants were respondent nos.
4 before the High Court; and the High Court has by the impugned order,
considered it fit to allow the prayer of the respondents against them for
removal of the grills for access to the backyard. According to the stand of the
landlord-respondent, since the police were taking a partisan attitude against
her, the filing of a writ petition became necessary. We are unable to follow
this argument. There is no doubt that the dispute is between two private
persons with respect to an immovable property. Further, a suit covering either
directly a portion of the house-property which is in dispute in the present
case or in any event some other parts of the same property is already pending
in the civil court. The respondent justifies the step of her moving the High
Court with a writ petition on the ground of some complaint made by the
appellants and the action by the police taken thereon. We do not agree that on
account of this development, the respondent was entitled to maintain a writ
petition before the High Court. It has repeatedly been held by this court as
also by various High Courts that a regular suit is the appropriate remedy for
settlement of disputes relating to property rights between private persons and
that the remedy under Article 226 of the constitution shall not be available
except where violation of some statutory duty on the part of a statutory
authority is alleged. And in such a case, the court will issue appropriate
direction to the authority concerned. If the grievance of the respondent is
against the initiation of criminal proceedings, and the orders passed and steps
taken thereon, she must avail of the remedy under the general law
constitutional jurisdiction to be used for deciding disputes, for which
remedies, under the general law, civil or criminal, are available. It is not
intended to replace the ordinary remedies by way of a suit or application
available to a litigant.
The jurisdiction is special and extra-ordinary and should not be exercised
casually or lightly. We, therefore, hold that the High Court was in error in
issuing the impugned direction against the appellants by their judgement under
appeal. The appeal is accordingly allowed, the impugned judgement is set aside
and the writ petition of the respondents filed in the High Court is dismissed.
There will be no order as to costs.