S.M. Daud, J.
1. This petition under Article 227 of the Constitution takes exception to an order passed against the petitioner when she tried to execute the decree passed in Regular Civil Suit No. 190 of 1962.
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 instituted as C.R.A. No. 27 of 1965, heirs of Modi and Bhagwani were either on record or brought on record. In relation to Kanhere, the application moved by petitioner recited that to her knowledge Kanhere had left no heirs. The application for bringing the heirs of Modi and Bhagwani on record vide C.A. No. 1138 of 1978 was allowed. Against this Bhagwani's heirs moved the Supreme Court by a Special Leave Petition bearing No. 957 of 1979. The Supreme Court summarily rejected the Special Leave Petition. In the meantime, Spl. Civil Application No. 1540 of 1977 came up for hearing, and, on 9-1-80 a Division Bench of this Court allowed the same. The decree passed by the trial Court was restored and the verdict of the District Court at Pune was set aside. Bhagwani filed S.L.P. No. 1858 of 1980 challenging the verdict in Spl. C.A. No. 1540 of 1977. The Modis also moved the Supreme Court by an S.L.P. taking exception to the order passed in Spl. C.A. No. 1540 of 1977. Bhagwani's S.L.P. was allowed to be withdrawn, while that preferred by Modis, was dismissed.
The battle was then carried to the home front. Petitioner levied execution vide Darkhast No. 107 of 1980. Bhagwani filed Regular Civil Suit No. 3511 of 1965 for a declaration that he was a lawful sub-tenant. An application was moved for transfer and the same was rejected. It was in Spl. C.A. No. 795 of 1980 that Bhagwani impleaded Vijay and Vasant (present respondents Nos. 1 and 5) describing them as heirs of deceased Kanhere. In that suit, a declaration was claimed about the verdict of the High Court which was the foundation of the execution levied by the petitioner, being null and void. This result followed, it was alleged, pursuant to the failure of petitioner to join Kanhere's heirs after the demise of that person during the pendency of the Spl. C.A. No. 1540 of 1977. An application was moved by Bhagwani for a temporary injunction to restrain the petitioner from executing the decree. An ad interim injunction was granted, but the same was vacated after hearing petitioner. Bhagwani moved the District Court in appeal against the said order, but in vain. Thereafter he moved this Court vide C.R.A. No. 779 of 1981. Again, the move was not successful. In this C.R.A., Vijay and Vasant applied for transposing themselves as revision petitioners. C.R.A. No. 779 of 1981 was rejected and the application moved by Vijay/Vasant allowed to be withdrawn. Bhagwani preferred S.L.P. No. 7289 of 1981 against the rejection of the C.R.A. but to no avail. It was during the pendency of the above, that Bhagwani moved the executing Court contending, that the decree sought to be executed by the petitioner was void and incapable of execution. This was pursuant to the omission to impleaded the legal representatives of Kanhere to the pending Spl. C.A. No. 1540 of 1977. This application was rejected. Against the rejection, Bhagwani preferred W.P. No. 3488 of 1981. On November 10, 1981, the writ petition was rejected. Bhagwani preferred Letters Patent Appeal bearing No. 187 of 1981. The same was rejected, whereupon S.L.P. No. 10121 of 1981 was moved by Bhagwani, Vijay and Vacant. The said S.L.P. was dismissed. In the meantime, an heir of Bhagwani moved the Supreme Court by another S.L.P. to assail the adverse order. That S.L.P. was rejected. Vijay filed a suit in the Small Causes Court bearing No. 2405 of 1981 assailing the decree put in execution. He moved an interim application and obtained an ad interim injunction. Petitioner objected to the grant of injunction, and, upon the same being confirmed, preferred an appeal. The said appeal was allowed and the injunction vacated. Against the order discharging the interim injunction, Vijay preferred W.P. No. 479 of 1933. The said petition was rejected. On April 7, 1983, Vijay came forth with an objection under section 47 of the Civil Procedure Code contending that the decree sought to be executed was a nullity and hence incapable of execution. A reply disputing this was tendered by the petitioner. On 30-4-83, the objection of Vijay was sustained and petitioner's execution dismissed.
3. The order passed by the Executing Court is assailed in this petition. It is contended that the Executing Court had no jurisdiction to go behind the decree and refuse to execute it. At any rate, it could not be said that Kanhere was not properly represented in Spl. C.A. No. 1540 of 1977. Moreover, the objection taken in execution and sustained by the Executing Court had been over-ruled by a competent Court number of times. Therefore, the plea was barred by res judicata. Vijay and Vasant had been set up by the Bhagwanis and Modis to create obstcales in the path of the petitioner. They had no interest either in the property or in the litigation. The executing Court was in error in sustaining the objection and dismissing her Execution petition. A writ was sought to quash the order passed by the Executing Court and to give it a direction to proceed further with the execution and place the petitioner in possession of the premises.
4. The contentions summarised above, are repudiated by the respondents. A preliminary objection is taken to the tenability of the petition on the ground that the Rent Act provides for a revision to the District Court, and, petitioner could not come straight under Article 227 to this Court. There was no merit in the contentions raised by the petitioner in regard to the executability of the decree, and, the incompetence of the Executing Court to entertain the objection raised by Vijay. That objection was well-founded and the order restoring the decree for possession in the suit of 1962 was a nullity. In the result, the petition deserved to be dismissed with costs.
5. Having regard to the contentions aforestated, the points that arise for decision are :---
(1 ) Whether a petition under Article 227 is not tenable in view of the right given by the Bombay Rent Act to lodge a revision to the District Court ?
(2) Whether the order of the Executing Court sustaining the objection raised by Vijay, is illegal ?
(3) What order?
My findings, for reasons given below, are:-
(1) The petition is tenable.
(2) Yes it is.
(3) Petition allowed.
6. Mr. Ghelani has raised a preliminary objection about the maintain ability of the petition. Counsel submits that the Rent Act provides the remedy of a revision vide section 29(3). The argument is that an appeal does not lie against an order passed in execution and, therefore, the aforesaid sub-section is attracted. This sub-section to the extent it is material for our purposes, reads as follows: ---
"Where no appeal lies under this section from a decree or order in any suit or proceeding ... and elsewhere the District Court, may for the purpose of satisfying itself that the decree or order made was according to law, call for the case in which such decree or order was made ... the District Judge or any Judge to whom the case may be referred by the District Judge shall pass such order with respect thereto as it or he thinks fit."
The reply to this made by Mr. Abhyankar was that an order passed in execution is not an order under the Rent Act. Consequently, section 29(3) is not applicable, for it covers only decrees or orders made in proceedings under the Rent Act. This contention raised by Mr. Abhyankar was negatives as far back as 1975 in Habib Ahmed Khudabux v. Abdul Khadar Rehmanji Godiwala and others, , Mr. Justice
Nathwani speaking for the Division Bench consisting of himself and Mr. Justice Desai, when confronted with a submission identical to that of Mr. Abhyankar, had this to say :---
"The term "proceeding" is a term of wide import and includes an execution proceeding of a decree passed under section 28(l)."
However, the existence of an alternative or statutory remedy is not a bar against the invoking of the jurisdiction of a High Court under Articles 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 shuttled 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 to the premises. In such a situation, unless it be shown that recourse to the High Court under Articles 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 not have ended there, for the losing party would have surely come to the Supreme Court via this 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, this Court acting under Article 227 will not foil an attempt to do so.
7. The objection upheld by the Executing Court has to meet a two-fold hurdle. But before coming to this contention, let me first set out the factual background and the exact contentions advanced. Against the setting aside of the decree passed in favour of petitioner's predecessor, a civil revision application was moved. That was Civil Revision Application No. 27 of 1985. An application was moved to convert the civil revision application into a Petition vide Articles 226 and 227 of the Constitution. The conversion having been permitted, one of the Bhagwanis, moved the Supreme Court vide Civil Appeal No. 2100/N/68. The Supreme Court admitted the appeal and, granted stay of all the proceedings. During the pendency of the said appeal, the appellant-Bhagwani expired. In 1971, Nilkanth Kanhere expired, and, in May 1974, Modi, the second respondent in the pending appeal, before the Supreme Court died. The heirs of deceased Bhagwani brought themselves on record, as they did, the heirs of the deceased Modi But in relation to Nilkanth Kanhere, the heirs of Bhagwani took the stand that it was not necessary to bring the said heirs on record. Civil Appeal No. 2100/N/68 was allowed to be withdrawn. Heirs of Modi and Bhagwani were brought on record by the petitioner in the pending Spl. C.A. No. 1540 of 1977 also. In the application moved on that occasion, the petitioner averted that to her knowledge Nilkanth Kanhere had left no heirs. Spl. C.A. No. 1540 of 1977 was allowed, and, the decree of the trial Court restored. Respondent No. 4 moved an Special Leave Petition bearing No. 1858 of 1980 to the Supreme Court, and, that was allowed to be withdrawn. Respondent No. 2 and the other heirs of Modi filed Special Leave Petition No. 3360 of 1980 to assail the judgment in Spl. C.A. No. 1540 of 1977. That Special Leave Petition was dismissed. It be remembered that several proceeding had preceded the levy of execution by the petitioner. Modi and Shagwani or their heirs did or could have raised the contention that Nilkanth Kanhere's non-substitution, had rendered the verdict delivered in Spl. C. A. No. 1540 of 1977, void. This plea was in terms taken later on by respondent No. 4-K.K. Bhagwani. That was in Spl. Civil Suit No. 795 of 1980. In clear terms, the verdict in the Spl. C.A. No. 1540 of 1977 was sought to be declared a nullity and incapable of execution. This was based on the ground of the failure to impleaded the heirs of Nilkanth Kanhere after his death. It is true that the said suit may be still said to be pending, for it was only the application seeking an interim injunction to prevent the execution of the decree, that has been rejected. Nonetheless, the rejection of the interim relief was on merits, and, it was given prior to the order of the Executing Court assailed in this petition. The argument is that respondents could have raised the challenge to the executability of the decree and did raise it. Except for the Executing Court's order assailed in this petition, at no stage was the plea upheld. Consequently, if not raised, the plea must be deemed to be barred by the principle of constructive res iudicata, Alternatively, if raised and negatived in a prior proceeding, respondents should not have been allowed to raise the same by the Executing Court. It is submitted that the principle of res-judicata, constructive and direct, is on a much wider basis than that enumerated in section 11 of the Code of Civil Procedure, 1908. In support of this submission, reliance is place on State of U.P. v. Nawab Hussain, and Dolai Maliko v. Krushna Chandra Patnaik, . To quote from the latter decision :---
"It is well-known that the doctrine of res judicata is codified in section 11 C.P.C. but it is not exhaustive. Section 11 generally comes into play in relation to civil suits. But apart from the codified law the doctrine of res judicata has been applied since long in various other kinds of proceedings and situations by courts in England, India and other countries. The rule of constructive res judicata is engrafted in Explanation IV of section 11 and in many other situations also principles not only of direct res judicata but of constructive res judicata are also applied. If by any judgment or order any matter in issue has been directly and explicitly decided the decision operates as res judicata and bars the trial of an identical issue in a subsequent proceeding between the same parties. The principle of res judicata also comes into play when by the judgment and order a decision of a particular issue is implicit in it, that is, it must be deemed to have been necessarily decided by implication; then also the principle of res judicata on that issue is directly applicable. When any matter which might and ought to have been made a ground of defence or attack in a former proceeding but was not so made, then such a matter in the eye of law, to avoid multiplicity of litigation and to bring about finality in it is deemed to have been constructively in issue and, therefore, is taken as decided."
Counsel for respondent No. 1 has vehemently contested the applicability of the doctrine of res judicata as pressed by Mr. Abhyankar. His submission is that the plea of res judicata has never been negatived, and in fact, has been ordered to be kept open as was done when a civil appeal was allowed to be withdrawn by the Supreme Court. Applications seeking interim injunctions in the suits tiled after the commencement of the execution are shrugged off as interlocutory orders, subject to variation, and, therefore, not admissible in support of a plea of res judicata. Plausible this argument is but has no merit except that of plausibility. Right since the death of Nilkanth, all the respondents whether themselves or through their predecessors, have been strenuously opposing the decree, and after the restoration thereof, its execution. From time to time they have advanced the plea that the failure to substitute an heir in place of deceased Nilkanth, vitiated the judgment delivered in Spl. C.A. No. 1540 of 1977. This plea was raised seriously and inconsequentially, as and when, it suited the respondents. Until the Modis and Bhagwanis would ward off the petitioner or her predecessors on other grounds, they paid no serious attention to the failure to substitute a legal representative in place of Nilkanth Kanhere. Nonetheless the plea was taken, and if not, ought to have been taken. Admittedly, except in the execution under challenge, never was the plea accepted. Respondents could have very well applied for a review of the judgment delivered in Spl. C.A. No. 1540 of 1977. They could have taken the said plea in the appeal which was filed or pending before the Supreme Court. They did and were either allowed to withdraw the appeals or petitions. Appeals were dismissed or withdrawn. To get out of this situation, respondent No. l's Counsel submits that whatever may have been decided as between the petitioner on the one hand and the Modis and Bhagwanis on the other, his client and the other heirs of Nilkanth Kanhere, were not patties to the same. Therefore, whatever may have happened, will not bind respondents Nos. 1, 5 and the other heirs of Nilkanth Kanhere. This, therefore, brings me to the other facet of the case.
8. It was submitted on behalf of the petitioner that the omission to substitute the heirs of Nilkanth Kanhere was not fatal. There existed an order Under Order XXII, Rule 4-A of the Code of Civil Procedure, 1908. The order supporting this plea is said to be the one passed by Naik, J., In a civil application accepting petitioner's averment that Nilkanth Kanhere had died leaving no heirs. The judgment delivered by Naik, J., in Civil Application No. 1131 of 1971 does not show that he was dealing with an application moved to secure an order under Order XXII, Rule 4-A of the Code of Civil Procedure. A faint attempt was made to show that Nilkanth had become virtually disinterested in the litigation after the passing of the decree by the trial Court. The decree passed by that Court was not assailed by him, and, therefore, the decree as against him had become absolute. If this plea is accepted, it would amount to countenancing the argument that two decrees were passed in the suit instituted by plaintiff's predecessor. These were : a decree putting an end to the rights of the tenants, and another, directing the eviction of the sub tenants introduced. It is not possible to accept this interpretation of the decree passed, for the decree so passed was one and indivisible, although operative against more than one person. The failure to implead heirs and the consequences thereof have been considered in many cases. The authoritative pronouncement on the subject will be found at the ratio is :---
"Even so we ate of opinion that unless there is fraud or collusion or there are other circumstances which indicate that there has not been a fair or real trial or that against the absent heir there was a special case which was not and could not be tried in the proceeding, there is no reason why the heirs who have applied for being brought on record should not be held to represent the entire estate including the interest of the heirs not brought on the record. This is not to say that where heirs of an appellant are to be brought on record all of them should not be brought on record and any of them should be deliberately left out. But if by oversight or on account of some doubt as to who are the heirs, any heir of a deceased appellant is left out that in itself would be no reason for holding that the entire estate of the deceased is not represented unless circumstances like fraud or collusion to which we have referred above exist."
Before proceeding further, let me make it clear that there is no substance in the plea of respondent No. 1 that the failure to implead heirs of Nilkanth Kanhere was due to collusion between petitioner and the alleged sub-tenants. The very tenacity with which the sub-tenants are opposing the petitioner and the predecessor-in-interest since 1962, furnishes a clear refutation to the baseless plea. It is true that one of the Bhagwanis did dispute petitioner's submission in Spl. C.A. No. 1 540 of 1977, that Nilkanth Kanhere had died issueless or without leaving any heirs. But that was a stray contention and raised for no better a reason that the natural instinct of the Modis and Bhagwanis to refute everything that the petitioner had to say in the course of the litigation. As mentioned earlier, when an occasion arose to substitute an heir in place of Nilkanth Kanhere in his own initiated litigation, respondent-Bhagwani came out with a plea that it was not necessary to implead Nilkanth Kanhere's heirs. For the petitioner, it was argued that the Code of Civil Procedure, 1908 is not applicable Section 141, it is submitted, does not apply to proceedings under Articles 226/227 of the Constitution. In terms the explanation to section 141 excludes the applicability thereof to proceedings under Articles 226 of the Constitution. The present petition which is under Article 27 of the Constitution, may seem to be governed by the Code. But it has to be followed not literally fully, but "as far as it can be made applicable". Mr. Ghelani submits that and all the
cases referred to with approval in that authority, do not apply to the present case. His argument is that all those cases arose out of the failure to join all the heirs of a deceased appellant and not a deceased respondent as is the case here. Were the question to be considered in a civil appeal or a proceeding to which the Code of Civil Procedure applies with full rigour, there would have been no alternative but to uphold the contention raised by Counsel. But the position in a writ petition is different. Shortly stated, the question is whether a Writ Court will allow technicalities to prevail ? Will it allow the violation of the fundamental basic principles of justice and fair play in the name of adherence to procedural requirements ? Will it accept a litany of patent falsehoods to prop a plausible technicality to defiant a well-deserved decree ? The answer to all these questions must be a firm "no". The straightforward, way of looking at the submission which was accepted by the Executing Court is whether there was any prejudice caused to Kanhere's heirs ? Along with the sub-tenants i.e. the very vigorous Modis and Bhagwanis, Nilkanth Kanhere's heirs were interested in defeating and delaying the decree which was restored in Spl. C.A. No. 1540 of 1977. That Nilkanth Kanhere was more or less a silent spectator to the whole show, is apparent. After the passing of the decree by the trial Court, he did not prefer an appeal. No doubt his case could have been and was going to be enquired into by the Appellate Court. That Court reversed the trial Court's finding albeit, it also felt compelled to confirm the finding in relation to bona fide requirement. It would be giving credence to the incredible if we accept the plea that Vijay and Vasant were ignorant of the course the proceedings after the demise of Nilkanth Kanhere. However they did not feel compelled to come-forth and get themselves substituted until the Modis and Bhagwanis had exhausted their bag of tricks to foil the execution. The obvious reason is that the interest which Vijay and Vasant were involved in, was being prosecuted by the Modis and Bhagwanis. It is argued that a mere affinity in the matter of resisting a claim for possession under the Rent Act, would not mean, that all the defendants had a common interest or shared a common estate. Let us not go by the technicalities of Order XXII C.P.C. Identity of cause in respect of the case as a whole, and substantially so, having been established, between Kanhere's heirs on the one hand and Modis and Bhagwanis on the other, it was not open to the Executing Court to hold that the failure to substitute Nilkanth Kanhere's heirs, rendered the verdict in Spl. C.A. No. 1540 of 1977, a nullity. The interest which Nilkanth Kanhere represented in the writ petition, was one he held in common with the other respondents to the Spl. C.A. Therefore, upon his demise it was not necessary to implead his heirs to the writ petition. For the purposes of that petition, the estate that Nilkanth left at the time of his death, was a determination to resist the claim for possession made under the Rent Act by the petitioner's predecessor. That interest was shared and, in fact more actively prosecuted, by the Modis and Bhagwanis, than he himself could have ever done. Applying the test laid down by the Supreme Court in the aforementioned authority, there was no fraud or collusion against the nominal heirs of Nilkanth Kanhere; there was no special case which they could advance in the proceedings, and, the omission moreover was not deliberate. Therefore, the omission was not fatal.
9. To now revert to the plea of res judicata, it is clear that the general principles of that doctrine apply. Directly and otherwise, the alleged nullity of the decree has been considered and rejected. Its re-agitation was impermissible. Having regard to the foregoing, the order passed by the Executing Court, will have to be set aside. There is no reason to deprive the petitioner of costs. Hence the order.
The Executing Court's order upholding the objection raised by respondent No. 1 and supported by the other respondents, is hereby quashed, Also quashed, is the dismissal of the Execution petition levied by the petitioner. That execution petition will be restored to file and proceeded with in accordance with the law. Petitioner shall get her costs from respondent No. 1 Vijay Kanhere. He and the other respondents shall bear their own costs Rule in the above terms, made absolute.