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IN THE HIGH COURT OF BOMBAY
S.M. Daud, J.
Dina Dara Sukhia.... Petitioner.
Versus
Vijay Dattatraya Kanhere others .... Respondents.
Writ Petition No. 197 of 1983, decided on 11-12-1985.
Advocates appeared :
K.J. Abhyankar and Y.S. Jahagirdar i/b. Matubhai, Jameitram Madan, for petitioner.
M.K. Ghelani with Miss Armin Wandrewalia i/b. Romer, Dadachanji Sethna Co., for respondent No. 1.
R.N. Bhagattjee, for respondents Nos. 2 and 3.
Section 29 (3)-Constitution of India-Article 226-Availability of an alternative remedy-Whether writ petition maintainable.
Held, the existence of an alternative or statutory remedy is not a bar against the invoking of the jurisdiction of a High Court under Article 226 or 227 of the Constitution. It is true that where an alternative remedy provided by the statute exists. High Courts are normally reluctant to interfere unless it be shown that the remedy is not equally efficacious or is dilatory, expensive or time-consuming in nature. So far as the present case is concerned, a litigation which commenced way back in the year 1962 has still not passed the teething troubles. Parties have settled between Pune and Delhi, visiting Bombay from time to time, and, there seems to be no end to this journeying. Whilst the petitioner is determined to evict, the respondents are determined to stick on the premises. In such a situation, unless it be shown that recourse to the High Court under Article 226 or 227 is wilful or actuated by bad faith, it would not be just to throw out the petition merely because of the existence of an alternative statutory remedy. Even if the petitioner had preferred a revision, matters would have ended there, for the losing party would have surely come to the Supreme Court via High Court. The ding-dong battle between the parties will go on endlessly, and, if time and expense can be saved by skipping an intermediate forum, Court acting under Article 227 will not foil an attempt to do so.
2. For an understanding of the questions to be resolved here, the following factual context has to be borne in mind :-
The subject-matter of the dispute is a plot of land with a structure standing thereon being used for the exhibition of films under the name and style of "Capital Cinema" at East Street, Pune-1. Originally, the property belonged to Zillubai and Mohmed Esa. Deceased Nilkanth Kanhere as given a lease of the land by the two owners afore-mentioned, and, he put up the structure which came to be a cinema house given the name mentioned above. Kanhere executed a registered lease on 19-2-35 in favour of the owners promising to pay a monthly rental for the duration of the lease, which was placed at 10 years. The lessee had an option to extend the lease for a further period of 10 years. He also had the right to sub-let the premises, and this right he exercised by leasing out the Capital Cinema to the Western India Theatres Ltd., which was a family concern of a group to be hereinafter referred to as the "Modis". The Modis entered into some arrangement, and, this brought on the scene another group to be referred as "Bhagwanis". Zillubai gifted her interest in the land to Mohmed Esa, who sold the same to M.H. Moledina. Moledina expired on 10-11-54, leading to a scramble amongst his heirs. This gave rise to an administration suit and the receiver appointed by the Court sold the property on 10-1-59 to the late husband of the petitioner named Dara Sukhia. Dara Sukhia, on 19-8-59, addressed a notice to Kanhere terminating his tenancy and sent copies of the said notice to the Modis and Bhagwanis. The notice not having yielded results, Dara Sukhia instituted Regular Civil Suit No. 190 of 1962. In that suit, there was a claim for ejectment on the grounds of (i) unlawful sub-letting by Kanhere and/or the Modis, (ii) Kanhere defaulting in the payment of rent and (iii) the property being required reasonably and in good faith by the plaintiff. The suit was defended by Kanhere and the Modis. The Bhagwanis were ex parte and then started the deaths of the original suitors. The first who died was Dara Sukhia, who was substituted by his widow the present petitioner. On 14-12-62, the trial Court decreed the suit holding that Dara Sukhia had proved the ground under section 13(l)(g) of the Bombay Rent Act. Modi preferred an appeal being Civil Appeal No. 422 of 1963 to the District Court at Pune. On 14-4-64, the appeal was allowed and the decree passed by the trial Court set aside. The limited ground on which the appeal was allowed, was that, Modi was entitled to a notice terminating the tenancy in his own right. Significantly, the trial Court's finding in relation to the personal requirement of the plaintiff, was affirmed. Against this adverse verdict, the petitioner and one Kuka, also a legal representative of Dara Sukhia preferred C.R.A. No. 27 of 1965 to this Court. The said revision was referred to a Division Bench which later on allowed the same to be converted into a writ petition failing under Articles 226 and 227 of the Constitution. Professing to be aggrieved by the conversion, one of the Bhagwanis moved the Supreme Court by Civil Appeal No. 2100/N/68. The Supreme Court stayed all proceedings. During the pendency of the civil appeal, Bhagwani died. In 1971, Kanhere expired. In May 1974, Modi who was respondent No. 2 in the civil appeal aforementioned, passed away. The heirs of Bhagwani and Modi were brought on record, but not those of Kanhere. This omission was on the professed ground that it was not necessary to bring Kanhare's heirs on record. On January 14, 1977, the heirs of Bhagwani were allowed to withdraw Civil Appeal No. 2100/N/68. In the pending Spl. C.A. No. 1540 of 1977, originally
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