Access to justice should not be misused as a license to file misconceived and frivolous petitions, and the behavior of the advocate is subject to social duty and should not involve making scandalous allegations.

( 1 ) THIS writ petition has been filed for directing the respondents not to interfere with the shop and plot of the petitioners and further prohibit the respondents not to trespass into the possession of the petitioners plot without having any right.

( 2 ) PETITIONERS grievance is that the respondent No. 5 who is his cousin brother, has executed an agreement with the respondent No. 4, the Managing Director of Reliance India, Lucknow in respect of the property in dispute and the respondent No. 4 to start with the construction over the said land with the collusion of respondent No. 5, though the respondent No. 5 did not have any authority to transfer the rights in favour of the respondent No. 4.

( 3 ) THE learned Standing Counsel appearing for respondents has submitted that as a suit between the parties is pending and against the order passed therein a F. A. F. O. No. Nil of 1984, has been filed in which this Court vide order dated 10. 5. 1984, stayed the further proceedings in the Civil court, Gyanpur, District Varanasi, this would not be desirable for this. Court to interfere in the matter as the petitioners, raise the dispute questions of fact, particularly, regarding the title etc. , and in case petitioners are aggrieved, they should file a suit or should make a prayer in the earlier suit after getting the disposal of the aforesaid F. A. F. O.

( 4 ) WE have considered the rival submissions made by the learned Counsel for the parties and perused the record.

( 5 ) ADMITTEDLY, suit is pending between the parties regarding the title over the property in dispute; and the petition raises the disputed questions of fact in respect of the title etc. and the competence of the respondent No. 5 to transfer the Fights in favour of the respondent No. 4. Thus, we are not inclined to interfere in the matter and petition is liable to be dismissed.

( 6 ) IN K. R. Rashid and Sons v. Income-tax Investigation Commission and Ors. , AIR 1954 SC 207, a Constitution Bench of the Honble Supreme Court considered the issue involved herein that when the remedy under Section 8 (5) of the Taxation of Income-tax (Investigation commission) Act, 1947 has been pending whether the High Court could entertain the writ petition. The Honble Apex Court held that a person may choose/effect where it will proceed with the alternative remedy or with the writ petition, but both cannot be perused simultaneously.

( 7 ) A similar view has been reiterated by another Constitution Bench in Trilok Chandra Moti chandra and Ors. v. H. B. Munshi, AIR 1990 SC 898, however, the Honble Apex Court cautioned that a Writ Court should entertain a writ petition in rare cases, where the ordinary process of law appears inefficacious that the Writ Court interferes even where other remedies are available.

( 8 ) IN G. B. Gosain v. State of Orissa, (1963) 2 SCR 879, the Honble Supreme Court held that even where an alternative remedy has been exhausted by a party, but that party could pursue any proceeding under Article 226 of the Constitution for the same relief.

( 9 ) A Constitution Bench of the Honble Supreme Court in A. V. Venkateswaran, Collector of customs, Bombay v. Ramchand Sobhraj Wadhwani and Anr. , AIR 1961 SC 1506, held that even where a party has approached the alternative forum, the Court should entertain a writ petition of not, a straight jacket formula cannot be formulated. The Court may examine the facts and circumstances of the case and decide as to whether it was to entertain the petition or not. However, where the petitioner has already approached the alternative forum for appropriate relief, it is not appropriate that the writ petition should be entertained. The rule is passed on public policy and motivating factor is that of existence of the parallel jurisdiction in another court.

( 10 ) IN S. J. S. Business Enterprises (P) Ltd. v. State of Bihar and Ors. , JT 2004 (Supp 2) SC 601, the Court held that mere availability of alternative forum for appropriate