LLOYDS BANK, LTD Vs. SUROJIMULL JALAR

JUDGEMENT

(1.) This Rule was granted at the instance of Lloyds Bank, Limited, who were defendants in the suit. It is directed against an order of the Subordinate Judge of Howrah refusing an application by Lloyds Bank, Limited, to amend their written statement. The suit was brought to enforce a charge executed in favour of the plaintiff. The Bank claimed certain charges in priority to those in favour of the plaintiff and these are set out in the written statement which they filed in the suit. This written statement was filed so long ago as 28 June 1924. The amendment which is now sought is an amendment to enable the Bank to plead two other securities, dated the 15th of May 1922 and the 8 of January 1923, which the Bank allege are in priority to the plaintiff's security. The failure of the Bank to plead these two securities was discovered by them in July 1924. They refrained at that time from making an application to amend their written statement for the reason that they were advised to commence another suit which has in fact been commended on the Original Side of this Court. That suit was commenced so long ago as 17 November 1924 and pleads among other things these two further securities of 15 May 1922 and of 8 January 1923. But the Bank have been advised that it is also desirable for them to plead these two securities in the suit in which this Rule was obtained. They accordingly applied to the Subordinate Judge for amendment on the lines which I have indicated and on the 14 August 1925 the learned Subordinate Judge passed an order refusing to allow the amendment. So, far as I understand he was influenced in his decision by the delay that had taken place and he was also not prepared to accede to the contention of the Bank that they were misled by the form in which the plaintiff's charge was pleaded.

(2.) It is not necessary I think for me to refer to these pleadings in detail, but apparently the learned Judge thought that there was no ground based on the form in which the plaintiff's claim was formulated to justify the allegation that was made before him. Accordingly, the view which he formed was that these securities might have been pleaded when the original written statement was put in by the Bank. He says something about the delay being utilized for the manufacture of documents and he lays stress upon the fact that the two further securities sought to be pleaded were not registered documents. But we do not think that he means nor was it necessary for him to find that these two securities were not genuine documents and his observations were only general. We have been invited by the learned advocate who appears for the Bank to express an opinion with regard to this. But it is impossible on the materials before us to form an opinion as to whether these securities are genuine or not. I am perfectly content to assume for the purpose of this Rule that they are genuine securities. I have stated the real facts and circumstances under which the learned Subordinate Judge refused to allow the amendment, whether he was right or wrong in doing so, or whether we ourselves under similar circumstances should have exercised our discretion in the same way, I do not know.

(3.) Certainly I am inclined to think, speaking for myself, that I should have been inclined to allow the amendment on such terms as I thought fit. But after all I think that the question of amendment is a question of discretion with the Subordinate Judge and unless we are satisfied that the discretion was exercised on entirely wrong lines, or in fact that he refused a jurisdiction vested in him, we should not be justified in interfering under Section 115 of the Civil P. C.. No doubt, in certain cases in this Court that section has been given a wide application and it has been utilized to correct errors of law and not merely errors of procedure; but with all respect we think that this extension of jurisdiction under Section 115 is not justified and that it should be confined, and strictly confined, to cases in which there has been material irregularity so far as jurisdiction is concerned and either a failure to exercise a jurisdiction vested in the Court or a wrong exercise of such jurisdiction. In spite of what has fallen from the Bank we find it impossible to say that there has been a failure in this case by the learned Subordinate Judge to exercise jurisdiction which was vested in him. He has applied his mind to the facts and circumstances with regard to those documents and in the exercise of his discretion he has refused to allow the amendment...which was sought. This being so, although we might have exercised our jurisdiction in a different way to what the learned Subordinate Judge has done, that does not justify us in interfering under Section 115 unless there has been, as we have already stated, a refusal of jurisdiction.