The judgment emphasizes the principle that the extraordinary jurisdiction under Article 227 should be exercised sparingly and that parties should avail themselves of alternative remedies provided under the law.

Kuldip Singh, J.

This petition under Article 227 of the Constitution of India read with Section 482 Cr.P.C. has been filed for quashing order dated 31.8.2012 passed by Judicial Magistrate 1st Class (I), Shimla in case No. 18-3 of 2012.

2. It has been stated that the respondent is the daughter in law of the petitioners. Vinay Awasthi husband of the respondent was the son of the petitioners died on 5.1.2012 leaving behind his family and a son. The respondent alleged that after the marriage she resided with her husband at Kunthal Cottage Khalini, Shimla, she and her late husband renovated the building and constructed a duplex from their income. The respondent has also alleged that for raising the construction she spent her istridhan and gifts received from her parents and relatives. The respondent has also alleged that Vinay Awasthi was running a business which has been grabbed by the petitioners.

3. The petitioners denied the contentions of the respondent. They took the stand that for establishing and running the business of Vinay Awasthi they had made the payments. They paid over Rs. 30 lacs to Vinay Awasthi from 4.12.2004 to 18.2.2011. The Kunthal Cottage is the self acquired property of petitioner No.1. The respondent was staying there with her husband.

4. It has been stated that the Court below has passed the order dated 31.8.2012 without appreciating the pleadings, documents and law applicable. The impugned order is based upon surmises and conjectures. The Court below without any pleading granted the relief of possession to the respondent wrongly, illegally. The evidence was not called, proper hearing was not given to the petitioners. The petition filed by the respondent is vague and suffers from material particulars. The Court below has not appreciated that the petition filed by the respondent was not maintainable. The respondent was never forced to leave matrimonial home. The respondent has filed the petition only to grab the property. The submission has been made for setting-aside the impugned order.

5. Heard and perused the record. The learned counsel for the respondent has taken preliminary objection that the petition is not maintainable in view of alternative remedy of appeal provided under Section 29 of the Protection of Women from Domestic Violence Act, 2005 (for short ‘Act’). The learned counsel for the petitioners has submitted that there is no domestic relationship between the respondent and the petitioners. The respondent is not an aggrieved person under the Act. The learned counsel for the petitioners has relied S.R. Batra and another vs. Smt. Taruna Batra AIR 2007 SC 1118 and Adil and others vs. State and another 2011 (1) Criminal Court Cases 843. The learned counsel for the respondent has supported the impugned order.

6. The Section 29 of the Act provides appeal to the Court of Session within thirty days from the date on which the order made by the Magistrate is served on the aggrieved person or the respondent, as the case may be, whichever is later. The learned counsel for the petitioners has not denied that impugned order is appealable. He has submitted that remedy provided under the appeal is time consuming, the impugned order is patently illegal, therefore, the petition has been filed under Article 227 of the Constitution of India read with Section 482 Cr.P.C. for quashing impugned order.

7. In Miss Maneck Custodji Surjarji vs. Sarafazali Nawabali Mirza AIR 1976 SC 2446, it has been held that the respondent had clearly a legal remedy available to him by way of an appeal against decree of the City Civil Court and that remedy was not only adequate but was more comprehensive than the one under Article 227 of the Constitution. The jurisdiction under Article 227 of the Constitution is an extraordinary jurisdiction which is to be exercised sparingly and in appropriate cases and it is not to be exercised as if it were an appellate jurisdiction or as if it gave unfettered and unrestricted power to the Hig