BAI ATRANI Vs. DEEPSING BARIA

JUDGEMENT

(1.) This application arises in the course of a pending suit in which the plaintiff claims to be the son, or at least the dasiputra, of a certain deceased Thakor; with his plaint the plaintiff presented an application praying for an injunction against the Thakor s senior widow, restraining her from making an adoption pending the decision of his status. The learned Subordinate Judge at first granted a temporary injunction against the widow, but afterwards, for reasons with which we are not at present concerned, he dissolved it. The plaintiff appealed to the District Judge, who has granted a temporary injunction restraining the widow from adopting pending the decision of this suit. This application is made in order that the District Judge s injunction should be revised by this Court.

(2.) Mr. Coyaji for the plaintiff takes the preliminary point that the application is not competent under Section 115 of the Civil Procedure Code, and he relies mainly upon such cases as Chattar Singh v. Lekhraj Singh (1888) I.L.R. 5 All. 293, In re Nizam of Hyderabad (1886) I.L.R. 9 Mad. 256 and Farid Ahmad v. Dulari Bibi (1884) I.L.R. 6 All. 233, where the Courts have held that there is no jurisdiction under Section 115 to revise an interlocutory order when there is an appeal from the final decree thereafter to be passed. These Allahabad cases, were, however, considered in Dhapi v. Ram Pershad (1887) I.L.R. 14 Cal. 768, where the learned Judges of the Calcutta High Court took a different view, and, having regard to the comprehensiveness of the word case occurring in Section 115 and to the possibility of grave injustice which might result from the adoption of the other principle, decided that under Section 115 of the Code the Court had jurisdiction to revise an interlocutory order. This decision was considered by Sir Charles Sargent and Mr. Justice Candy in Motilal Kashibhai v. Nana (1892) I.L.R. 18 Bom. 35 which took a course between the two extremes, and which admittedly lays down the law applicable in this Presidency to the present point. The learned Chief Justice concedes for the purpose of argument that the word case may be wide enough to include an interlocutory order, but he points out that a word of such general import must be controlled by the purpose with which the section was framed. That purpose, he observes, was clearly to enable a party to obtain the rectification of a decision or order of a lower Court by the High Court when there would otherwise be no remedy. In the facts then before the Court a remedy was supplied by Section 591 of the Code of 1882, and on that ground it was decided that the revisional jurisdiction of the Court could not successfully be invoked. Mr. Rao contends that this decision in Motilal s case is in favour of the present petitioner, inasmuch as in the circumstances of this application the applicant has no other remedy available to him, and may, if this petition is summarily dismissed, be exposed to injustice, otherwise incapable of remedy. It appears to me that this contention should prevail.

(3.) I make no attempt to fasten any formal definition upon the word case which occurs in Section 115. I note only that, as was held in Motilal Kashibai v. Nana it is a word of wide or comprehensive import and clearly covers a far larger area than would be covered by such a word as suit or appeal . There is, therefore, in my opinion, nothing incongruous or repugnant in holding that the word case may cover such an order as we have here, restraining a Hindu widow from adopting. I am further of opinion that inasmuch as Section 115 is merely an empowering section granting certain jurisdiction to the High Court, and as the use or exercise of that jurisdiction will, within the prescribed limits, be regulated by the discretion of the High Court, the section ought to receive rather a liberal than a narrow interpretation.