Mustan Tambawala v. Sangeeta Ramchand & Ors.

Judgment

2. Heard. This petition under Article 227 of the Constitution of India is directed against an order dated 29th September 2009 passed by the City Civil Court at Dindoshi (Borivali Division), Mumbai, rejecting the petitioners’ application for interim injunction.

3. Mr. Mehta, learned Senior Advocate for the respondent no.1, raises a preliminary objection to the maintainability of the writ petition and submits that an appeal is provided against the impugned order under clause (r) of Order XLIII Rule 1 of the 2 Code of Civil Procedure (for short “the Code”) and as such the writ petition should not be entertained. Mr. Mehta also invites my attention to the averments made in paragraph 17 of the writ petition which are to the following effect: “ The petitioners state that they are educated persons and they had been advised that they have the right to statutory appeal. The petitioners state that despite this fact they have approached this Hon’ble Court in its extraordinary jurisdiction under Article 227 of the Constitution of India in view of the extraordinary facts of this case.” Mr. Mehta submitted that though the petitioners are aware that they have a statutory right of an appeal, they have chosen to approach this Court invoking its extraordinary jurisdiction under Article 227 of the Constitution of India which should not be permitted. In support, Mr. Mehta relied upon two decisions of the Supreme Court, viz. K.S. Rashid & Sons v. Income Tax Investigation Commission, AIR 1954 SC 207 and Whirlpool Corporation v. Registrar of Trade Marks, Mumbai, (1988) 8 SCC

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4. In the case of K.S. Rashid & Son v. Income Tax Investigation Commission (supra), the Supreme Court has held that where an alternative remedy exists, it would be a sound exercise of discretion to refuse to interfere in a petition under Article 226 of the Constitution of India. In Whirlpool Corporation v. Registrar of Trade Marks, Mumbai, (supra), the Supreme Court has held: “But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged.”

5. Per contra, counsel for the petitioners submitted that in extraordinary situation like the one which arises in the present case, the Court can interfere in exercise of writ jurisdiction. In support, he referred to and relied upon two decisions of the Supreme Court rendered in Sneh Gupta v. Devi Sarup, 2009 (2) SC 1484, and Yeshwant Sakhalkar v. Hirabat Kamat Mhamai, 4 (2004) 6 SCC 71. Counsel for the petitioners invited my attention to the observations made in paragraph 33 of the judgment in the case Sneh Gupta (supra) which read as under: “ The High Court moreover was exercising its jurisdiction under Article 227 of the Constitution of India. While exercising the said jurisdiction, the High Court had a limited role to play. It is not the function of the High Court while exercising its supervisory jurisdiction to enter into the disputed question of fact. It has not been found by the High Court that the findings arrived at by the learned Additional District Judge were perverse and/or in arriving the said findings, the learned Additional District Judge failed and/or neglected to take into consideration the relevant factors or based its decision on irrelevant factors not germane therefor. It could intervene, if there existed an error apparent on the face of the record or, if any other well known principle of judicial review was found to be applicable.” These observations do not help the petitioners. The Supreme Court has only said that it can intervene if there exists an error 5 apparent on the face of record or if any other well known principle of judicial review was found to be applicable. In that case, the Supreme Court has not held that in spite of availability of an alternative remedy, the High Court can interfere by exercising jurisdiction under Article 226/227 of the Constitution of India. In case there exists an alternative remedy, the High Court would not ordinarily interfere in exercise of its powers under Article 226/227 of the Constitution of India unless the case falls under the well recognised exceptions re-emphasised in the case of Whorlpool Corporation (supra). Similarly, the observations in the case of Yeshwant Sakhalkar (supra) relied upon by the petitioners, are not applicable for considering whether the High Court should exercise jurisdiction under Article 227 of the Constitution of India where there exists an alternative remedy.

6. In my view, in the present case, the petitioners have not only an alternative remedy but an efficacious alternative remedy. The order has been passed by the City Civil Court. An appeal under Order XLIII of the Code against the order lies to this very Court, but would only be placed before a Bench which takes up appeals from orders. The appellate jurisdiction under Order XLIII of the Code would be much wider than the jurisdiction 6 under Article 227 of the Constitution of India. In the circumstances, the appellate jurisdiction is equally, if not more, efficacious than the jurisdiction under Article 227 of the Constitution of India. Consequently, I decline to entertain the writ petition which is hereby rejected.

7. At the conclusion of the arguments when I started dictating the order in the open Court, learned counsel for the petitioners requested that the petitioners may be permitted to withdraw the writ petition so that they can pursue their other remedy. When the matter had come up for hearing earlier on 22nd November 2010, this very preliminary objection was raised by the counsel for the respondents. At that time, the counsel for the petitioners sought time to address the Court on the question of maintainability of the writ petition. Today also, when the preliminary objection was repeated, the counsel for the petitioners did not seek leave to withdraw the writ petition but argued the matter at full length. In view of this, I decline the permission to withdraw the writ petition and reject the same. (D.G. KARNIK, J.)