Writ Petition May Be Maintainable, But Court Can Refuse To Entertain It Under Article 226 Discretionary Powers: Telangana High Court

While hearing a writ petition against an eviction order challenged on the ground of procedural irregularities, the Telangana High Court highlighted the distinction between the maintainability and entertainability of a writ petition, shedding light on the discretionary powers of the Court under Article 226 of the Constitution of India.

A single judge bench of Justice K Lakshman held that while the writ petition filed by the petitioner was indeed maintainable, it could not be entertained.

“At this stage it is also important to know the subtle difference between maintainability and entertainability of a writ petition. While a writ petition may be maintainable even where an alternative remedy exists, the courts can refuse to entertain the same. As stated above, the power of issuing writs is discretionary and the court, in its discretion, can refuse to issue a writ," the high court said. 

Background

At the heart of the dispute was an ex parte eviction order passed against the petitioner. After an unsuccessful attempt to have this order set aside through an Order IX Rule 13 application, the petitioner approached the High Court, in a writ petition challenging the original eviction order.

The petitioner argued for the maintainability of the writ petition, citing alleged procedural irregularities in the impugned order. Conversely, the respondent contended that the writ petition was neither maintainable nor entertainable, given the availability of alternative statutory remedies.

Decision

The High Court referred to the Supreme Court's decision in Godrej Sara Lee Ltd. v. E&TOCAA where the apex court had said that the objection on maintainability goes to the root of the matter, and if such objection were found to be of substance, the "courts would be rendered incapable of even receiving the lis for adjudication". The apex court further said that mere existence of an alternative remedy does not automatically render a writ petition not maintainable.

Entertainability, on the other hand, The Supreme Court had said, falls squarely within the realm of the court's discretion. A writ petition, despite being maintainable, may not be entertained for various reasons. The apex court said that dismissing a writ petition solely on the ground of an unexhausted alternative remedy, without examining whether an exceptional case has been made out, would be improper.

The High Court thereafter observed,“It is a settled position of law that High Courts shall not exercise their writ jurisdiction if an efficacious and alternative remedy is available. However, that is not to say that existence of an alternative remedy automatically renders a writ petition not maintainable. Even where an alternative remedy is available, the courts can still entertain a writ petition. The power of issuing writs is discretionary and subject to certain self-imposed limitations.”

Applying these principles to the case at hand, the court found the writ petition to be maintainable. However, it exercised its discretion not to entertain the petition. This decision was based on several factors: the petitioner had multiple alternative remedies available after the ex parte order; they had already chosen one of these remedies by filing an Order IX Rule 13 application; and the doctrine of election (when a party has two remedies available, he can choose only one) precluded the petitioner from simultaneously pursuing the writ remedy after choosing a statutory remedy.

"As this Court refuses to entertain the present writ petition, it need not deal with the contentions of the petitioner that there were procedural irregularities, no notice was served and orders were passed on a memo filed by the 2nd respondent. It is open for the petitioner to raise the said grounds before the appropriate forum," the high court said. 

WRIT PETITION No.19230 OF 2024

Counsel for petitioner: . Avinash Desai, Senior Counsel appearing on behalf of Narender Naik

Counsel for respondent: A. Venkatesh, Senior Counsel appearing on behalf of Vishal Kumar Jain

Click Here To Read/Download Order