IMPORTANT POINT
Writ petition involving pure questions of fact is not maintainable.

JUDGMENT :

Abhay Manohar Sapre, J.

1. Leave granted.

2. This appeal is filed against the final judgment and order dated 30.08.2017 passed by the High Court of Kerala at Ernakulam in Writ Petition (C) No. 15385/2017 whereby the Division Bench of the High Court allowed the writ petition filed by respondent No.1 herein and directed the appellant herein, by issuing a writ of mandamus, to restore the possession of the flat in question to respondent No.1 herein.

3. Facts of the case lie in a narrow compass. They, however, need mention in brief infra to appreciate the short question involved in this appeal.

4. The dispute essentially relates to the possession of a flat bearing No. 3D, 3rd floor located in building known as Royal Court Block IV at Kozhikode (hereinafter referred to as “the flat”) and is between the appellant and respondent No. 1 herein.

5. Respondent No. 1 filed a writ petition being W.P.(C) No. 15385 of 2017 before the High Court of Kerala against the appellant herein and other respondents (local police authorities) seeking therein a relief of restoration of his possession over the flat in question. The appellant contested the writ petition on various factual and legal grounds including raising an objection about the maintainability of the writ petition and the reliefs claimed therein.

6. By impugned order, the Division Bench allowed the writ petition and directed the appellant (respondent No. 5 in the writ petition) to restore the possession of the flat in question to respondent No. 1 herein (writ petitioner in the High Court) which has given rise to filing of the present appeal by way of special leave by respondent No. 5 of the writ petition in this Court.

7. The short question, which arises for consideration in this appeal, is whether the High Court was justified in entertaining the writ petition filed by respondent No. 1 herein and Secondly, whether the High Court was justified in issuing a mandamus against the appellant directing him to restore the possession of the flat to respondent No. 1.

8. Heard Mr. Haris Beeran, learned counsel for the appellant and Mr. R. Basant, learned senior counsel, Mr. A.K. Joseph and Mr. Nishe Rajen Shonker, learned counsel for the respondents.

9. Having heard the learned counsel for the parties and on perusal of the record of the case, we are constrained to allow the appeal, set aside the impugned order and dismiss the writ petition filed by respondent No. 1 herein out of which this appeal arises.

10. In our considered opinion, the writ petition filed by the respondent No. 1 under Article 226/227 of the Constitution of India against the appellant before the High Court for grant of relief of restoration of the possession of the flat in question was not maintainable and the same ought to have been dismissed in limine as being not maintainable. In other words, the High Court ought to have declined to entertain the writ petition in exercise of extra ordinary jurisdiction under Article 226/227 of Constitution for grant of reliefs claimed therein.

11. It is not in dispute that the reliefs for which the writ petition was filed by respondent No. 1 herein against the appellant pertained to possession of the flat. It is also not in dispute that one Civil Suit No. 807/2014 between the appellant and the respondent No. 1 in relation to the flat in question for grant of injunction was pending in the Court of Munsif at Kozhikode. It is also not in dispute that the appellant and the respondent No. 1 are private individuals and both are claiming their rights of ownership and possession over the flat in question on various factual grounds.

12. In the light of such background facts arising in the case, we are of the considered opinion that the filing of the writ petition by respondent No. 1 herein against the appellant herein under Article 226/227 of the Constitution of India in the High Court, out of which this appeal arises, was wholly misconceived.

13. The question as to who is the owner of the flat in question