KESHO PRASAD SINGH Vs. BOARD OF REVENUE

JUDGEMENT

(1.) The allegations upon which this Rule was issued on an application under Section 45 of the Specific Relief Act, may be briefly set out. Maharani Beni Prasad Koeri, Maharani of Dumraon, died on the 13th December 1907. The petitioner, Kesho Prasad Singh, alleges that he thereupon became entitled to the Dumraon Raj estate, but on the 16th December 1907, the Court of Wards declared an infant, Jung Bahadur Singh, as a ward of the Court and took possession of the estate as if it belonged to the infant in question. The petitioner further alleges that he addressed various memorials to the Government of Bengal and protested against the possession by the Court of Wards of the said Raj. As his efforts were unsuccessful, he commenced an action on the 5th February 1909, in the Court of the Subordinate Judge of Shahabad, against the infant represented by his guardian and the Collector of Shahabad as representing the Court of Wards. The trial of the suit lasted from the 1st December 1909 to the 13th July 1910, and on the 12th August 1910 judgment was pronounced in favour of the petitioner. Subsequently on the 31st August, he applied to the Members of the Board of Revenue, forming the Court of Wards, that the estate might be released in his favour. Intimation was sent to him on the same date that the Court declined to comply with his request. He then obtained this Rule, on the 8th September 1910, calling upon Mr. Slacke and Mr. Macpherson, Members of the Board of Revenue, to show cause why they should not forthwith release the Dumraon Raj estate from the charge of the Court of Wards, and take all necessary steps for the purpose. The learned Counsel who has appeared to show cause has contended that the application is open to various objections, anyone of which is sufficient to justify its refusal.

(2.) It has been argued, in the first place, that the petitioner has failed to comply with Rule 483 of the Rules of this Court which provides that unless otherwise ordered, every Rule issued under Section 46 of the Specific Relief Act upon an application under Section 45 shall call not only on the public servant, corporation, or inferior Court, but also on any person other than the applicant who may be affected by the Act to he done or forborne, to show cause. It is not disputed that the present Rule has been served only upon the Members of the Board of Revenue; it has not been served upon the infant who would be undoubtedly affected, if the application were granted. The objection, therefore, is fatal; it is one of substance and not of mere form, for the principle has been recognised wherever writs of mandamus are issued, that if a right, title or interest, in or to real property, is directly involved, a persons owning or claiming the same, must as a rule be joined as parties. We do not desire, however, to rest our decision on this ground because possibly if the application were meritorious, the Court might, upon payment of all costs by the petitioner, still allow the petition to be amended, and notice thereof given to all necessary parties before the Rule was heard.

(3.) It has been contended, in the second place, that the application ought to be refused, because the applicant has other specific and adequate legal remedy. It is an elementary principle that recourse ought not to be allowed to an extraordinary remedy of this description, when it is not really needed. In the case before us, the plaintiff is entitled to sue in ejectment; he has brought such a suit and has been successful; he is entitled to execute his decree, but has not yet taken any steps in that direction. It is well settled that a mandamus will never be granted to enforce the general law of the land which may be enforced by action; for instance, where the applicant has the ordinary legal remedy of an execution, mandamus does not he: R. v. Chester (1747) 1 Wilson 209. Consequently, where an action has been brought and judgment entered against a company, the Court would refuse to issue a mandamus commanding the company to pay the sum recovered and costs, though it appears that the company had no assets: R: v. Victoria Parli Co. (1841) 1 Q.B. 288 : 55 R.R. 249. For similar reasons, a mandamus is not obtainable in cases where there is a remedy by distress: R. v. London and Black Wall Railway Co. (1845) 3 D. & L. 399 : 71 R.R. 849. These cases recognise the doctrine that a mandamus will he to prevent a failure of justice upon reasons of public policy, to preserve peace, order and good Government, correct official inaction, and enforce official function, but only in cases of last necessity, where the usual forms of procedure are powerless to afford relief, where there is no other clear, adequate, efficient and speedy remedy; in other words, as stated by the Supreme Court of the United States in Kendall v. Stokes (1843) 3 Howard 87, where the petitioners may have relief in an ordinary Civil action, mandamus will not he: R. v. Severn (1819) 2 B. and Ald. 645; see also Bank of Bengal v. Dinonath Roy (1881) I.L.R. 8 Calc. 166, In re Bombay F.I. Co. (1892) I.L.R. 16 Bom. 398, R. v. Stepny Borough Council (1902) 1 K.B. 317. The second objection, therefore, which goes to the root of the matter, must be sustained.