DHANDEI KUNWAR Vs. CHOTU LAL

JUDGEMENT

(1.) I have arrived, though not without hesitation, at the conclusion that we ought not to interfere in this matter. The application is one moving this Court to interfere, in the exercise of its revisional jurisdiction, with an order passed by the Subordinate Judge of Jaunpur, who has applied the provisions of Section 202 of the Tenancy Act (Local Act II of 1901), to the facts of a certain suit pending before him. The application, as drafted, purports to be under Section 107 of the Government of India Act of 1915, which reproduces Section 15 of the former High Courts Act. We allowed the applicant, nevertheless, to argue his case on the assumption that he was entitled to claim relief either under this section or, in the alternative, under Section 115 of the Code of Civil Procedure (Act V of 1908). As I concurred in permitting the argument to proceed on these lines, I do not feel justified in pressing the point now; but it must be clearly understood that I am not committed to the view that it is desirable to allow an application to secure admission under one section in order that it may be argued under a different one.

(2.) I am considerably impressed by the ingenuity of the attempt to invoke the general powers of superintendence vested in this Court in connection with the present matter. Quite a plausible case can be made out for doing so. After all, the operative portion of the order complained of is simply that the suit pending in the court below do stand adjourned to some uncertain future date. It was put to us, with considerable force, that a capricious or perverse order of adjournment for an indefinite or very lengthy period might amount to a practical refusal to try the suit in which such order was made, If and when such a case arises, I have no doubt this Court will find appropriate means for dealing with it. The present is not such a case: the learned Subordinate Judge has passed his order of adjournment, because he holds himself bound to do so by the provisions of Section 202 of the Tenancy Act. He has arrived at this conclusion after a fair and judicial consideration of the pleadings of the parties and of the arguments addressed to him. On the principles laid down by the Full Bench of this Court in Muhammad Suleman Khan v. Fatima (1886) I.L.R. 9 All. 104, the powers of superintendence of this Court do not warrant interference in a case like this.

(3.) I find, however, even more difficulty about applying the provisions of Section 115 of the Code of Civil Procedure to the facts before us. Before doing this I should have to hold that the order complained of was one which decided a case, and a case in which no appeal lies. I do not think either of these conditions is fulfilled. As I have already pointed out, the present effect of the order of the court below is simply that the hearing of the suit in question stands adjourned. At some future date the learned Subordinate Judge may proceed to determine one or more of the issues arising in the suit in accordance with the decision of the Revenue Courts in another suit between the same parties which, we are informed, has been instituted and is ponding. When he does this, and if his decision is adverse to the plaintiff, the latter will have a prompt remedy available by way of appeal from the decree. To such an appeal the provisions of Section 105 of the Code of Civil Procedure would apply, so as to enable the plaintiff to obtain from this Court an authoritative decision of the question of law involved, I do not deny the force of the arguments from convenience which have been addressed to us; but to my mind the hearing of this application has also illustrated the grave practical inconveniences involved in asking this Court to determine an intricate question of law otherwise than on a regular appeal. At any rate, it did not Seem to me that a single argument was addressed to us in support of the admissibility of this application which could not have been urged with greater force by the unsuccessful applicant in Muhammad Ayal v. Muhammad Mahmud (1910) I.L.R. 32 All. 623. I find nothing to the contrary in the case of Debi Das v. Ejaz Husain (1906) I.L.R. 28 All. 72, relied upon by the applicant. The question there was as to a possible remedy available by way of a separate suit; there seems a broad distinction between this and the question of an available remedy by way of appeal, for the objection to interference in the latter class of cases is based on the wording of Section 115 of the Civil Procedure Code itself. Apart from the view which I am myself disposed to take of the provisions of this section in relation to the facts before us, I feel that we should be departing from the established practice of this Court and setting a new precedent if we allowed the present application.