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Judgment
Heard learned Counsel for the parties.
The petitioner is a subsidiary of National Textile Corporation and respondent no.1 is the landlord of the suit premises. Respondent no.2 is the tenant of respondent no. 1 in respect of suit office premises and petitioner is the sole tenant in respect of part of the suit office premises. That during the pendency of the suit, respondent no.2 entered into a Consent Term with respondent no. 1 on 6th September, 1999 and under which he agreed to hand over to respondent no.1, 7800 square feet area of the suit office premises. In the Consent Term it is recorded that the area in occupation of the petitioner is only 3617 square feet out of the total area of 11, 417 square feet. This part of the Consent Term is the subject matter of the challenge in this petition.
The submission on behalf of the petitioner is that the said Consent Term was inter se between respondent no. 1 and respondent no. 2 and the petitioner was not a party to the said Consent Term and hence, the same is not binding. However, it seems the petitioner chose the wrong forum to challenge this, through writ petition under Articles 226 of the Constitution of India, which in our considered opinion, was misconceived and not proper forum. The submission on behalf of the petitioner is that in fact, fraud is committed as against the petitioner by both respondent no. 1 and respondent no. 2 by including the area in possession of petitioner, without bringing petitioner a party to the said Consent Term. The question of fraud and to what extent the area covered by Consent Term includes the area in possession of petitioner cannot be gone into writ proceedings. This is basically a question of facts. The proper course open to the petitioner was to have moved under Order 21, Rule 97 of the Civil Procedure Code. However, in view of the fact that he is actually dispossessed from the area, the submission is, this remedy is not available, as was left with no other remedy, he filed the writ petition. The submission of the respondent is that they are not actually dispossessed, but it is again a matter of dispute, which cannot be gone into in the present proceedings. In view of the facts of this case the remedy to the petitioner is to seek relief through a suit.
Accordingly, we hold that proceeding taken through writ petition is misconceived. However, this is without prejudice to the rights of the petitioner to take such proceedings as advised in accordance with law. It is also made clear that any observation made by the courts below, will be without prejudice to the proceeding, if taken by the petitioner.
With the aforesaid observations, the special leave petition fails, it is accordingly dismissed.