JUDGMENT Rajindar Sachar, J.
(1) This is an appeal by the husband against the order of the Additional District Judge dt. 8 5.73, awarding to respondent wife maintenance pendente lite at the rate of Rs. 25.00 p.m, for herself and Rs. 20.00 p.m. for her children living with her and Rs. 100.00 as litigation expenses on application by her U/S 24 of Hindu Marriage Act hereinafter called the Act.
(2) The respondent has brought an application U/S 10 of the Act for judicial separation on the ground of cruelty which is pending in the Court below. Along with that she filed an application U/S 24 claiming maintenance pendent lite @ Rs. 120 p.m. and Rs. 200.00 as litigation expenses. The court found that of 2 elder children lived with the father while younger lived with the wife... .
(3) Section 24 provides that where in proceedings under the Act either the wife or the Judge. It is also pointed out that sub-section 2 of Section 169 further provides that if before the hearing of appeal any question of law arises, the District Judge may draw up a statement of the facts of the case and the question so arising and refer the statement with its opinion on the question for decision to the High Court. It is thus strongly contended that this writ petition should fail on the ground of an alternative remedy being available. I cannot agree. No doubt it is true that this court will not normally interfere under Article 226 where another adequate alternative is available. But that is a question of discretion and not of jurisdiction. This court, in its discretion, his to see in each case whether it should decline to exercise its jurisdiction in a particular case onthe ground that the alternative remedy is available. It is true that right of appeal is provided u/s 169. But it cannot be over looked that appeal shall be heard or determined under Section 169 unless the amount if any is dispute in the appeal has been deposited by the appellant in the office of the Corporation. Thus a condition precedent for right of appeal to be heard is the deposit of the amount in dispute by the petitioner. That such condition is an onerous condition was recognised in 1954 S. C. 403- Himmatlal Harilal Mehta Vs. State of Madhya Pradesh & Ors. I am not saying that ia every case the party is entitled to by-pass the alternative remedy of filing an appeal simply on the ground that the amount of tax is be deposited before an appeal can be heard. It will depend on the facts and circumstances of each case. In the present case it has been seen that the order of respondent No. 2 does not indicate on what basis the rateable value has been enhanced. As mentioned by me above it was essential to investigate various matters before assessing authority who could enhance the rateable value. All these facts having not been worked out the appellate court could not remand the matter back to the assessing authority for examining those 'details. Not only that as the question whether Nurses hostel is occupied for a charitable purpose, it might have been for the petitioner to ask the District Judge to refer such a question of law to this Court for decision.
(4) Considering further that the amount of tax involved is a substantial one and the assessment for a part of the building (i.e. for training of nurses) would be apparently illegal while the assessment regarding the other portions without first holding enquiry and investigating facts is arbitrary and unsustainable and the further fact that the petitioner's society is a charitable society it will be a proper exercise of discretion not to refuse relief to the petitioner more especially when the time for filing appeal has passed and when the same cannot be heard unless the amount of tax is first deposited by it. Such a cause might result in working injustice. I would, therefore, allow the writ petition, quash the assessment dated 20th September, 1971 made by respondent No. 2 and remit the matter back to him for making fresh assessment in accordance with the law and on merits, and keeping in view the observation made in this judgment. As the petitioner's society was not very diligent in giving full facts to the assessing authority in the first instance and have thus also contributed to the case being remitted back to the assessing authority, there will be no order as to costs.(J.K. Pruthi, Adv.)