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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.  

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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  

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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  3

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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  

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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  

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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.”

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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   

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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  8

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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.

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