Sachidanand Roy v. State of Bihar — 1997 DIGILAW 579 (PAT)

JUDGMENT B.M. Lal, C.J. This decision rendered in L.P.A. No. 1301 of 1996 governs the disposal of L.P.A. Nos. 1297, 1298, 1299, 1300, 1307, 1308 and 1321 of 1996. This L.P.A. (L.P.A. No. 1301 of 1996) and other connected L.P.As, referred to above, arise out of the common judgment rendered in C.W.J.C. Nos. 9436 to 9443 of 1996 by the learned Single Judge on 16th October, 1996, whereby the learned Single Judge by the impugned order has disposed of the writ petitions by directing the appellants as well as the Financial Corporation to remove the seal and unlock the shop premises belonging to Respondent no. 3 in each L.P.As. and further directed that the respondents concerned are entitled to continue in possession as tenant unless evicted in due process of law. 2. The short facts leading to these appeals are as under: The Bihar State Financial Corporation advanced loan to Hotel Nilanjas, Bhagalpur. Further it appears that the loan amount could not be repaid in accordance with the terms and agreement. Therefore the said Financial Corporation had to initiate a proceeding in accordance with the provisions of Section 29 of the State Financial Corporation Act, 1951 (hereinafter to be referred to as 'the Act' only) and pursuant to that thState Financial Corporation took over possession of the said unit in exercise of its powers under section 29(1) of the Act. The appellants have filed the tender for the said unit which was to be sold by the said Corporation under the statutory provisions of Section 29 of the Act. It appears that the appellants' tender being the highest amongst all tenderers, the sale of the mortgaged assets of the said unit was decided in favour of the appellants for an amount of Rs. 14,11,238/90, out of which, Rs. 8,32,018/- was paid by the appellants and the balance was treated as term loan to be repaid in instalments. After completion of the sale agreement, possession was delivered to the appellants. 3. The respondents-shop-keepers appear to have filed a Civil Suit bearing Title Suit no. 179 of 1992 before the learned second Munsif, Bhagalpur, for a declaration of their status as tenants in the shops on the ground floor and on 6.3.1994 they obtained an order maintaining status-quo. However, on 18.5.1995 the order of status quo appears to have been vacated by the learned Munsif. 179 of 1992 before the learned second Munsif, Bhagalpur, for a declaration of their status as tenants in the shops on the ground floor and on 6.3.1994 they obtained an order maintaining status-quo. However, on 18.5.1995 the order of status quo appears to have been vacated by the learned Munsif. Apprehending that the appellants shall take action immediately, Shivanand Pandey, Prahlad Pandey, Purnendu Chakravarty, Ajit Kumar, Sanjeet Kumar Bhagat, Abahy Kumar Pandey, Shiv Shankar Prasad, Sanjay Kumar Pandey, approached this Court by different writ petitions being C.W.J.C. Nos. 9436 to 9443 of 1996 seeking relief that the appellants be restrained from locking the shop premises. This Court by its impugned order dated 16th October, 1996, jointly disposed of all the writ petitions with a direction as referred to above. Against that impugned order, these Letters Patent Appeals have been filed. 4. The short question now arises for consideration before this Court is whether the so called occupants of the shops having elected the forum of approaching and filing a Civil Suit, without getting that available statutory remedy exhausted or withdrawn, can they switch on according to their own will or whims during the pendency of the Suit, by resorting to writ jurisdiction under Article 226 of the Constitution of India; and whether this Court will permit the extraordinary jurisdiction to be converted into a Civil Court under the ordinary law when admittedly the Suit is pending and the Interim orders or any miscellaneous order passed by the trial Court has not been challenged availing of the statutory remedy provided under the Code of Civil Procedure. 5. A perusal of the judgment ex facie demonstrates that while initiating a proceeding under section 29 of the Act, the Corporation locked the shops, which action was under challenge in the Civil Suit. However, during that process when the shops were locked, the sale proceedings have been terminated in favour of the appellants by virtue of which the appellants became the landlords. In the writ petitions while filing counter affidavit, the Corporation also emerged with this plea that the unit was sold under section 29 of the Act and after taking possession from the occupants, the same were handed over to the appellants when their deal was finalised any by that time the respondents, namely, Shiva Nand Pandey and others had not claimed any tenancy right. However, claiming of right as tenant by the occupants has been denied by the Corporation. Since this denial is on the record, the matter in issue involved in the writ petitions, appears to be disputed question of facts, which, in our opinion, should not have been gone into by the Writ Court particularly where the parties have already elected the forum by filing a Civil Suit. 6. Law in this regard is well settled that the Writ Court ordinarily shall not permit its extraordinary jurisdiction to be converted into a Civil Court under the ordinary law when the Suit is pending and Interm order or miscellaneous order passed by the trial court have not been challenged under the statutory provisions of appeal or revision as the case may be. 7. Learned counsel appearing for the Respondents, while supporting the judgment impugned contended that when the Suit was filed at that time the district authorities were not interfering with the possession of the respondent Shivanand Pandey and others. But interference started during the pendency of the suit and, therefore, the writ petitions were filed. The submissions made in this regard appear to be not judiciously sound inasmuch as the law has taken care of in this regard to meet such eventuality. In such circumstances, the Suitors may implead such persons as parties in the Suit itself rather than resorting to the extraordinary jurisdiction of a writ Court. 8. This legal position is not disputed that against the orders whereby the Munsif Court has rejected the occupants' (Shivanand Pandey's and others) injunction application, the remedy of Appeal under Order 43 Rule IC.P.C. was available to them but the same has not been availed of and directly the jurisdiction of Writ Court was invoked. In these circumstances, it is not only a case of patent error but the learned Writ Court appears to have exceeded in its jurisdiction. Though the writ jurisdiction is not confined to issuing the prerogative writs alone; but there is consensus of judicial opinion that the Writ Court will not permit its extraordinary jurisdiction to be converted into a Civil Court under the ordinary law where a Suit is pending and interim or miscellaneous orders already passed by the trial Court against which remedy of appeal or revision is available but not availed of. Thus the order impugned is liable to be interfered with by this Court. 9. Thus the order impugned is liable to be interfered with by this Court. 9. Therefore, in the opinion of this Court, under the principle of doctrine of election, once a forum is elected by a litigant, without getting that remedy exhausted or withdrawn on a reasonable ground, he can not switch on at his own sweet-will or whims during the pendency of that proceeding to any other forum, particularly remedy under Article 226 of the Constitution can not be resorted to. And normally a Writ Court will not permit its extraordinary jurisdiction to be converted into a Civil Court under the ordinary law when admittedly a Suit is pending and interim orders or miscellaneous orders passed by the trial Court have not been challenged availing of the statutory remedy provided under the Civil Procedure Code. (See the decision in the case of Swetambar Sthanakwasi Jain Samiti and Another vs. The Alleged Committee of Management Sri R.J.I. College, Agra and Others reported in JT 1996 (3) S.C. 21). 10. Learned counsel appearing for the Respondents has cited a number of decisions contending that the landlord or the lessor whether it be a private citizen or even the State or the State authorities has no right to enter into the house of the lessee or the tenant against his will and evict him by sheer brute force and for this proposition he has cited the decisions in the case of Bishan Das and others vs. State of Punjab and others AIR 1961 S.C. 1570 , in the case of Lallu Yeshwat Singh (dead) by his L.R. vs. Rao Jagdish Singh and others - AIR 1963 S.C. 620, in the case of State of U.P. and others vs. Maharaja Dharmendra Prasad Singh and others - AIR 1989 S.C. 997 , in the case of Samir Sobhan Sanyal vs. Tracks Trade Private Ltd. and others reported in 1996 (4) S.C.C., 144 and in the case of Gauri Shankar Bhagat vs. State of Bihar and others reported in 1996 (2) All PLR, 1162 : 1996 (2) PLJR 780 . 11. The propositions as laid down by their Lordships has no two opinions; but, in the instant case those propositions at this stage have no application. It is for the trial Court to take into consideration the relevant facts and circumstances of the case. 11. The propositions as laid down by their Lordships has no two opinions; but, in the instant case those propositions at this stage have no application. It is for the trial Court to take into consideration the relevant facts and circumstances of the case. Since the respondents have already elected a forum, therefore, these grounds are not available to them at this stage. 12. It is also submitted that after filing of the Suit a different cause of action accrued in favour of the respondents and, therefore, writ remedy was availed of. In support of this contention learned counsel for the respondents has relied upon the decision in the case of Rupthaya Cinema House and others vs. District Magistrate, 24 parganas and others reported in A.I.R. 1973 Calcutta, 23, in the case of S. Rajdev Singh and another vs. Union of India and others reported in A.I.R. 1989 Delhi, 238 and in the case of Awadh Bihari Yadav and others vs. State of Bihar and others reported in 1995 (6) S.C.C., 31 : 1995 (2) PLJR 105 (SC). 13. The ratio laid down in the above referred cases also has no application to the facts and circumstances of the instant case. As observed above, no sooner the application for grant of injunction was rejected, instead of challenging/assailing that order in an appeal or revision, as the case may be, the respondents have approached the Writ Court under Article 226 of the Constitution. Therefore these decisions also have no application. 14. It is also contended that the order impugned can not be questioned in letters patent appeal particularly when the learned Single Judge has found apparent illegality committed by the appellants and other respondents. In support of this contention learned counsel for the respondents has relied upon the decisions in the case of Mahabir vs. Sri D.K. Mittal, Deputy Mechanical Engineer, N.E. Railway and another reported in 1978 BBCJ, 704, in the case of Ram and Shyam Company vs. State of Haryana and others reported in A.I.R. 1985 S.C., 1147, in the case of Akhileshwar Prasad Narain Singh vs. State of Bihar and others reported in A.I.R. 1988, Patna, 347 : 1988 PLJR 1005 , in the case of Gauri Shankar Bhagat vs. State of Bihar and others reported in 1996 (2) All PLR, 1162 : 1996 (2) PLJR 780 , in the case of M.C. Abrol, Addl. Collector of Customs, Bombay and another vs. M/s. Shantilal Chhotelal & Co. and others reported in A.I.R. 1966 S.C. 197, and in the case of Mirdad and others vs. Board of Revenue and others reported in AIR 1977 S.C. 94 . 15. No doubt, the Letters Patent Appeal Court only interferes if the findings of the Court below is based on no evidence or irrelevant materials or non-existent facts or wrong application of law. In the instant case, as observed above, during the pendency of the Suit, writ jurisdiction has been availed of particularly when no prima facie case was found in favour of the respondents-occupants i.e. the writ petitioners while vacating and rejecting the injunction application by the trial court. Thus it is a case of 'wrong application of law' by the learned Single Judge and for this reason the decision In the case of Swetambar Sthanakwasi Jain Samiti (supra) applies in full force. In this view of the matter, the authorities cited by the learned counsel for the respondents have no application. 16. At this stage, we may observe that no litigant as of right, can approach the Court under writ jurisdiction, which is a discretionary one, in order to get his dispute settled in the manner as he wishes. Access to justice in this case appears to have been misused which the Writ Court ought to have refrained. 17. Thus, in view of the foregoing discussions, the order impugned dated 16th October, 1996, is set aside. The Letters Patent Appeals are allowed. However there shall be no order as to costs. The parties are directed to avail of the remedy provided under the Code of Civil Procedure.