IMPORTANT POINT
High Court cannot set aside a plaint by exercising power under Articles 226/227.

JUDGMENT

SUDHANSU JYOTI MUKHOPADHAYA, J.

1. 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.

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 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 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 evic