Authored By : J.G. Wooddroffe, Herbert William CameronCarnduff

J.G. Wooddroffe, J.

1. In this case the Judge in the Court below refused toamend the pleadings upon an application made to him; and the first questionthat has been argued before us is whether, that being an interlocutory order,it comes within the terms of sec. 115 of the Code. The determination of thisquestion depends upon another, viz., whether the word "case," whichis used in that section, is wide enough to include an interlocutory order. Theview which has been taken by other High Courts is in the negative. There is,however, one decision of this Court, namely, Dhapi v. Ram Fershad I. L. R. 14.Cal. 768 (1887). in which the opinion was expressed that the section did coverthe case of interlocutory orders. That decision, however, was a decision of onealone of the learned Judges who took Part in it. The other Judge (Mr. JusticeTottenham) reserved his opinion on the point, but assented to the order uponother grounds which are stated in has judgment.

2. So far as I am aware it has not been the general Practiceto interfere under this section in the case of interlocutory orders in one ofthe recent cases, namely the case of Gobinda Mohan v. Kunja Behary: 14 C. W. N. 147: S.C 10 C. L. J. 407 (1909) where the Pointwas raised, the Court stated that under the circumstances it was not necessaryto consider whether the case of Dhapi Ram Pershad (1)was rightly decided or toin the precise extent of the revisional powers of this Court under sec. 115signal power of the Code Procedure. Speaking for myself, I should have thoughtthat interlocutory order did not come within the scope of this section. It isun necessary with which I shall proceed to deal. It has however been contendedupon the authority of the decision of Mookerjee and vincent,JJ that this courthas power at any rate to interfere under sec 15 of the Charter and there areother cases in which that decision appears to have been followed and which arerecorded in Amjad Ali v. Ali Hussain Joher 15 C. W. N. 358: s. c. 12 C. L. J.519 (1910) and Kshirode Chunder Ghosal v. Saroda Prosad Mitra 12 C L. J. 625(1910) In Manilal Guzrati v. Harendra Lal "Rai Chowdhry 12 C. L. J. 556(1910) the rule was discharged, the case having been disposed of on the merits.This Court has generally been disinclined to limit the powers which itpossesses under the Charter Act do not propose to lay down any rule in thisregard. But whether or not the revision section of the Code applies and whetheror not this Court has the power to act under the Charter, there is one commonprinciple, which, in my opinion governs its interference in both cases and thatis this, that this Court will not have recourses ordinarily at least, to itsrevision or superintending powers where there is another and an adequate remedywhich is open to the applicant. The Court usually exercises these specialpowers in order to do justice, because without in recourse to such powers aremedy would not be open to the applicant.

3. Now, in the present case it I appears to me to be quiteplain that there is another and a proper and adequate remedy open to theapplicant. The learned District Judge in this case has refused to amend thepleadings. If he has wrongly refused to do so, the applicant will have a rightto appeal; and if the order which has been passed is erroneous, we must assumethat justice will be done and that the erroneous order will be corrected uponappeal. This, therefore, is not such a case as is referred to in Gobinda Mohan,v. Kunja Behary : 14 C. W. N. 147s. c. 10C. L. J 407 (1909),where the learned Judge speak of the power of the Court to interfere under theCharter where the circumstances are such that they are likely to causeirreparable injury.

4. On this ground, therefore, I would discharge this rulewith costs, assessing the hearing fee at three gold mohurs.

Herbert William Cameron Carnduff, J.

I agree; but as I was one of the Judges who decided the caseof Amjad Ali v. Ali Hussain Johar : 15 C. W. N. 353: s. c. 12C. L. J. 519 (1910). I desire to add a few words. That was a case in which anerroneous order, directing a partition, was set aside by Mr. Justice Mookerjeeand my self in the exercise of the powers conferred by sec. 15 of the CharterAct. If that order had been allowed to stand, there would have followedprotracted and costly proceedings, which in the end would, as we feltconvinced, most certainly have been set aside. The case was, therefore, anextreme one; and I would also point out that apparently it was not thendisputed before us that the Court had jurisdiction under sec. 15 of the Charterto set aside the order. The general question, therefore, was not thenconsidered. I agree that in this case, assuming that we could, we ought not tointerfere under either sec. 15 of the Charter or under sec. 115 of the Code ofCivil Procedure, for there is another and adequate remedy secured for thePetitioner in the right of appeal which he will have should the judgmenteventually given in the Court below be against him.

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Chandi Ray vs. Kripal Ray and Ors. (10.04.1911 - CALHC)