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PETITIONER: GHAN SHYAM DAS GUPTA AND ANR.

       Vs.

RESPONDENT: ANANT KUMAR SINHA AND ORS.

DATE OF JUDGMENT17/09/1991

BENCH: SHARMA, L.M. (J) BENCH: SHARMA, L.M. (J) VERMA, JAGDISH SARAN (J)

CITATION:  1991 AIR 2251            1991 SCR  Supl. (1) 119  1991 SCC  (4) 379        JT 1991 (4)    43  1991 SCALE  (2)611

ACT:     Constitution  of  India,  1950:  Article  226--Scope  of ---Jurisdiction--Exercise of---Whether justified when alter- native remedy available.      Civil  Procedure Code, 1908: Order XXI, Rules  97-106-- Execution of decree--Whether third party, claimant objector, entitled to remedy.

HEADNOTE:     The  appellants,  owners  of the  premises  in  question obtained a decree of eviction against the tenant, Respondent No. 7. While the decree was under challenge before the  High Court,   Respondent  Nos. 1 to 5 approached the  High  Court under  Art.  226 of the Constitution, claiming  that,  being members  of  Joint  Hindu Family, alongwith  the  lather  of Respondent No. 7, they were tenants in their own right under the appellants and were not bound by the decree, since  they were not parties in the eviction case. The appellants denied the claim of independent right of the respondent Nos. 1 to 5 and alleged that they had been subsequently inducted in  the premises as sub-tenants by respondent No. 7.     The High Court held that since the claim of the Respond- ent Nos. 1 to 5 was not examined and decided in the suit and the  decree was passed against Respondent No. 7  only,  they could not be evicted from the premises.     Allowing  the  appeal preferred by  the  landlord-appel- lants, this Court,     HELD:  1.1  The remedy provided under Art.  226  is  not intended to supersede the modes of obtaining relief before a civil  court or to deny defences legitimately open  in  such actions.  The jurisdiction to issue a writ of certiorari  is supervisory in nature and is not meant for correcting errors like appellate Court. [122 E-F]     State of Andhra Pradesh v. Chitra Venkata Rao, [1976]  1 SCR  521; Thansingh Nathmal & Ors. v.A. Mazid, [1964] 6  SCR 654 and M. Naina Mohammed v. K.A. Natarajan & Ors., [1976] 1 SCR 102, relied on. 120     1.2  The  Civil Procedure Code  contains  elaborate  and exhaustive  provisions for dealing with executability  of  a decree  in all its aspects. The numerous rules of order  XXI

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of  Civil Procedure Code take care of different  situations, providing  effective remedies not only  to  judgment-debtors and  decree-holders  but also to claimant objectors  as  the case  may be.  In an exceptional case, where provisions  are rendered incapable of giving relief to an aggrieved party in adequate  measure  and  appropriate time, the  answer  is  a regular suit in the civil court.  The remedy under the  Code is  of  superior  judicial quality than  what  is  generally available  under  other statutes, and the judge,  being  en- trusted  exclusively  with  administration  of  justice,  is expected  to do better. It will be, therefore, difficult  to find  a  case where interference in  writ  jurisdiction  for granting relief to a judgment-debtor or a claimant  objector can  be  justified.  Rules 97 to 106 of Order  XXI  envisage questions  to be determined on the basis of evidence  to  be led  by the parties and after the 1976 Amendment, the  deci- sion has been made appealable like a decree. [123C-E]     1.3  In the instant case, it was necessary to adjudicate upon the dispute between the parties and record a finding on the character of possession of Respondent Nos. 1 to 7 before proceeding  to consider whether the decree is executable  or not against them and having not done so, the High Court  has seriously  erred in law in allowing the writ petition  filed by them. The decision on the disputed issue was dependent on the consideration of the evidence to be led by the  parties, and  while exercising the writ jurisdiction, the High  Court was  not expected to go into that question and ought not  to have  embarked  upon a decision on merits, and  should  have refused  to exercise the special jurisdiction on the  ground of alternative remedy before the civil court. [122 B-D]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3656 of 1991.     From  the  Judgment  and Order dated  5.12.1988  of  the Allahabad  High Court in Civil Misc. Writ Petition No.  1695 of 1986. O.P. Rana and Girish Chandra for the Appellants. B.D. Agarwal and R .D. Upadhyay for the Respondents. 121 The Judgment of the Court was delivered by SHARMA, J. Special leave is granted.     2.  This  appeal  is directed against  the  judgment  of Allahabad  High  Court, allowing the writ  petition  of  the respondents  Nos. 1 to 5 under Article 226 of the  Constitu- tion, and directing that they shall not be evicted from  the premises  in  dispute  in pursuance of  an  eviction  decree passed by the small causes court, Allahabad. The main  ques- tion  which arises for decision is whether in the facts  and circumstances  of the case the High Court was  justified  in entertaining  the  writ petition under Article  226  of  the Constitution,  and proceeding to issue the  impugned  direc- tion.     3.  The  appellants are the owners of  the  premises  in question which according to their case was in possession  of Dr.  K.C. Sinha as tenant. After his death his  son  Prabhas Kumar Sinha, respondent No. 7, continued in possession.  The writ  petitioners- respondents are the sons of the  brothers of  Dr. K.C. Sinha, and according to their case  they  being members of the joint Hindu Family along with Dr. K.C.  Sinha are  tenants  in their own right under the  appellants.  The case  of the appellants is that they were  subsequently  in- ducted in the premises as sub-tenants by Prabhas Kumar Sinha

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and did not have any independent right.     4. The eviction suit in the small causes court was filed by the appellants against Prabhas Kumar Sinha for his  evic- tion,  without  impleading  the writ  petitioners,  and  the decree  passed therein is under challenge by  the  judgment- debtor  Prabhas  Kumar  Sinha in revision  before  the  High Court.  In  this background the respondents No. 1 to  5  ap- proached  the High Court under Article 226 of the  Constitu- tion, claiming that they, not being parties in the  eviction case, are not bound by the decree.     5.  The  appellants in support of their  denial  of  the claim of independent right as tenants of the writ  petition- ers,  pleaded supporting facts and circumstances in  detail, inter alia alleging that the writ petitioners have  deliber- ately concealed the fact they were parties in an immediately preceding  case  under the provisions of the  Rent  Act  for release of the premises in favour of the landlord-appellants and that the release order was ultimately made by the  dele- gated authority overruling their objection.     6.  The High Court has held that since the claim of  the writ  petitioners was not examined and decided in  the  suit and the decree was passed against Prabhas Kumar Sinha  only, they cannot be evicted from the premises unless a decree  is expressly passed against them. It has been 122 observed  that  the appellants must proceed to file  a  suit against  the  writ petitioners and obtain a  decree  against them if they intend to eject them.     7.  It  has been contended, and in our  view  correctly, that  if the claim of the writ petitioners of being in  pos- session  of  the premises as tenants in their own  right  is rejected and they are held to have been inducted by  Prabhas Kumar Sinha or his father Dr. K.C. Sinha, they are liable to be  evicted  in  execution of the present  decree.  It  was, therefore, necessary to adjudicate upon the dispute  between the parties and record a finding on the character of posses- sion of the writ petitioners, before proceeding to  consider whether  the decree is executable or not against  them,  and having  not done so, the High Court has seriously  erred  in law in allowing the writ petition by the impugned  judgment. The  decision  on the disputed issue was  dependent  on  the consideration of the evidence to be led by the parties,  and while  exercising the writ jurisdiction the High  Court  was not expected to go into that question. In the circumstances, the  Court  ought  to have refused to dispose  of  the  writ petition on merits, leaving the writ petitioners to avail of the remedy before the civil court. The error in the judgment as  pointed out earlier was the consequence of  the  initial mistake in entertaining the petition.     8.   The  principle  as to when the  High  Court  should exercise its special jurisdiction under Article 226 and when to  refuse  to  do so on the ground of  availability  of  an alternative remedy has been settled by a long line of cases. The  remedy  provided under Article 226 is not  intended  to supersede the modes of obtaining relief before a civil court or  to deny defences legitimately open in such  actions.  As was  observed in State of Andhra Pradesh v.  Chitra  Venkata Rao  [1976]  1 SCR 521 the jurisdiction to issue a  writ  of certiorari  is  supervisory in nature and is not  meant  for correcting  errors  like an appellate  court.  In  Thansingh Nathmal and Ors. v.A. Mazid: [1964] 6 SCR 654 a case dealing with  liability  to pay sales tax,  the  appellants  without following  the  statutory remedy under the  Sales  Tax  Act, moved  the High Court under Article 226 on the  ground  that the Act was ultra vires. The challenge was rejected. Another

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contention,  namely,  that the finding of  the  Commissioner that the goods were actually within the State at the time of the contract was based on no evidence and was purely  specu- lative, was also raised. This ground also failed before  the High  Court and the writ petition was  dismissed.  Approving the decision, this Court observed that if the appellants had persued the statutory remedy under the Act and the  question had  been referred  to the High Court, the Court could  have appropriately advised the Commissioner, but not having  done so the High Court could  not be asked to assume the role  of an appellate 123 court  over  the decision of the Commissioner  either  on  a question of fact or even of law. Again when a learned Single Judge  of  the  High Court and on appeal  a  Division  Bench proceeded to examine the correctness of an order in relation to grant of a permit to ply a vehicle under the Motor  Vehi- cles Act, it was observed by this Court in M. Naina Mohammed v.  K.A. Natarajan & Ors., [1976] 1 SCR 102, that the  power under Article 226 is supervisory in nature and the Judges at both the tiers had unwittingly slipped into the subtle  but, fatal,  error of exercising a kind of appellate  review.  So far the question of executability of a decree is  concerned, the  Civil Procedure Code contains elaborate and  exhaustive provisions  for  dealing  with it in all  its  aspects.  The numerous rules of order XXI of the Code take care of differ- ent  situations,  providing effective remedies not  only  to judgment-debtors  and  decree-holders but also  to  claimant objectors as the case may be. In an exceptional case,  where provisions  are  rendered incapable of giving relief  to  an aggrieved  party in adequate measure and  appropriate  time, the answer is a regular suit in the civil court. The  remedy under  the  Civil  Procedure Code is  of  superior  judicial quality  than what is generally available under other  stat- utes, and the Judge being entrusted exclusively with  admin- istration of justice, is expected to do better. It will  be, therefore,  difficult to find a case where  interference  in writ  jurisdiction for granting relief to a  judgment-debtor or a claimant objector can be justified. The rules 97 to 106 of order XXI envisage questions as in the present appeal  to be  determined  on the basis of evidence to be  led  by  the parties and after the 1976 Amendment, the decision has  been made  appealable  like  a decree. The  High  Court,  in  the present  case, therefore, ought not to have embarked upon  a decision  of  the writ petition on merits, and  should  have refused  to exercise its special jurisdiction on the  ground of alternative remedy before the civil court.     9.  We, accordingly, set aside the impugned judgment and dismiss the writ petition of the respondents without  exami- nation of the merits of the rival cases of the parties.  The appeal   is  allowed  with  costs,  assessed  at   Rs.2,000. """ N.P.V.                                 Appeal allowed. 124