JUDGMENT

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 Art. 226 of the Constitution and directing that they shall not be evicted from the premises in dispute in pursuance of an eviction decree passed by the Small Cause Court, Allahabad. The main question 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 Art. 226 of the Constitution, and proceeding to issue the impugned direction.

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 inducted in the premises as sub-tenants by Prabhas Kumar Sinha and did not have any independent right.

4. The eviction suit in the Small Cause Court was filed by the appellants against Prabhas Kumar Sinha for his eviction, 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 Nos. 1 to 5 approached the High Court under Art. 226 of the Constitution, 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 petitioners, pleaded supporting facts and circumstances in detail, inter alia, alleging that the writ petitioners have deliberately concealed the fact that 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 delegated 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 assessed against Prabhas Kumar Sinha only they cannot be evicted from the premises unless a decree is expressly passed against them. It has been 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 possession 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 possession 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 Art. 226 and when to refuse to do so on the ground