Kumaraswami Sastri, J.
1. This is a petition filed by the 2nd defendant to revise the order of the Subordinate Judge of Vizagapatam in Original Suit No. 10 of 1913, wherein he held that the plaintiff was entitled to claim an alternative relief not claimed in the plaint as filed and directed the defendants, after the case was closed and arguments almost over, to file an additional written statement without requiring an amendment of the plaint. Original Suit No, 10 of 1913 was filed by the widow of the Hajah of Tuni against the defendants to enforce the terms of an agreement entered into with her husband (who financed the litigation in connection with the Vizianagaram Instate), whereby the plaintiff's husband was entitled to a certain share in the decree that may be passed in the Vizianagaram suit either after contest or on compromise. The whole plaint proceeded upon the footing that there was a subsisting, valid and enforceable contract between the parties, under the terms of which the plaintiff was entitled to the relief claimed. Paragraph 35 of the plaint sets out that out of the properties secured by the compromise decree between some of the. defendants and the Hawaii of Vizianagaram the plaintiff was entitled to Rs. 1,68,629 and also to certain shares in the annuity and the house given to defendants Nos. 2, 5 and 6, Paragraph 37 of the plaint sets out the derails. There is not a word in the plaint as to the contract having become void or impossible of performance, as to the plaintiff being entitled to any relief under Section 65 of the Contract Act. Upon this plaint, written statements were filed and various defences were raised. For the purpose of this petition it is sufficient to refer to two of them. The first defence was that the plaintiff's husband committed a breach of contract and wrongly refused to finance the suit and that consequently he was not entitled, to any share in the decree amount as provided for by the agreement. In paragraph 25 of the written statement the defendants also stated that the plaintiff vas not even entitled to a refund, of the money actually advanced, as her husband wrongly discontinued to make payments which he was bound to make under the agreement. It is also contended that the contract being indivisible and not being in the nature of a loan intended to be re-paid, a mere part performance by the plaintiff's husband would not entitle her to any relief whatever even in respect of the part performed by her husband. It is clear from the pleadings that the case, that the contract had become void or become impossible of performance and that consequently plaintiff was entitled to a return of the money actually advanced under the provisions of Section 65 of the Contract Act, was never raised or was in the contemplation of the parties. Upon these pleadings issues were settled and one of the issues, was whether the suit agreement provided for the contingency that actually happened; if not, what is the plaintiffs remedy. I find it difficult to see how, having regard to the pleadings and the issues which were presumably settled with reference to the allegations therein, this issue can be said to cover the question as to whether the contract had become void or impossible of performance and whether by reason thereof the plaintiff was entitled under Section 65 of the Contract Act to the recovery of the amount actually advanced.
2. Mr. T.R. Ramachandra Iyer, who appeared for the defendants in the lower Court, states that till he commenced his arguments after plaintiff's Vakil closed his and after all the evidence was taken, neither the Judge nor the parties had the remotest idea that a claim was being made on the footing that the contract had become void or impossible of performance and that the 7th issue above referred to was intended to cover such a claim. Though the practice has been discountenanced by the High Court, the Subordinate Judge asked the parties to file written arguments and written arguments were presented by the plaintiff and defendants. In the written arguments of the plaintiff the contention that the contract had become void or impossible of performance was never raised by her Vakil. When the defendants' Vakil began his reply, he argued that the plaintiff was entitled to no relief under the contract because the compromise was not one effected in pursuance of the terms of the contract, since both the persons whose consent was necessary before the compromise could be legally effected, namely, plaintiff's husband and the late Hon'ble Mr. V. Kriahaswami Iyer, were dead at the date of the compromise. After Mr. T.R. Ramachandra Aiyar closed his arguments, plaintiff's Vakil in reply suggested that, even if the contract was void, the plaintiff would be entitled under Section 65 of the Contract Act to a return of the money actually advanced. The Subordinate Judge at this stage of the proceedings was of opinion that the contention put forward in reply by the plaintiff's Vakil was one which was raised in the pleadings and that the plaintiff was entitled to a relief on this ground. He gave the defendants leave to file an additional written statement and allow both parties to adduce evidence on the question;
3. It seems to me that the procedure adopted by the Subordinate Judge is, to say the least of it, opposed to all rules of practice and procedure. The plaintiff came to Court with an allegation that the contract was a subsisting and enforceable contract and that she was entitled to a certain share in the amount decreed by the compromise decree in the Vizianagaram suit.
4. There was not a whisper anywhere that she was entitled to any alternative relief. It is clear that till Mr. Ramachandra Aiyar began his arguments after all the evidence was closed on both sides, nobody even thought that such a claim was going to be put forward or was intended to be made. The Subordinate Judge seems to have thought that, because an argument was put forward by the plaintiff's Vakil in reply to the arguments of the defendants' Vakil, which by some stretch of language might be brought under one of the issues raised in the pleadings, it was open to him to call on the defendants to file an additional written statement in the absence of any amendment to the plaint. Assuming that the argument of the plaintiff's Vakil in. reply amounts to a statement made by him that his client wanted to raise an alternative ground that the contract was void and, therefore, she was entitled to the benefit of the amount actually advanced, the proper course for the Judge would be to direct the plaintiff, to amend her plaint by setting forth clearly the alternative relief which she seeks and the grounds on which she seeks it and after the amendment has been made to allow the defendant to file g an additional written statement, and to v decide first of all as to whether the amendement ought to be allowed and if allowed, c to raise additional issues and post the matter for further evidence.
5. Order VI, Rule 7, Civil Procedure Code, enacts that no pleading shall, except by way of amendment, raise any new ground of claim or contain, any allegation of fact inconsistent with the previous pleadings of 1 the party pleading the same. There can be little doubt that a, claim on the footing that the contract is void, is certainly a new ground in a suit tiled to enforce the terms of the contract. It does not follow from the statements made in the plaint that the contract is not subsisting and is not enforceable. It seems to me that the Court has no jurisdiction to direct the defendants to tile an additional written statement to meet allegations not contained in the plaint and which could, by no stretch of imagination, be hold to be covered by the allegations in the plaint. The difficulty was pointed out by the 2nd defendant in his additional written statement which he filed pursuant to the order of the Court. In paragraph 2, he states that the plaintiff is entitled to no relief under Section 65 of the Contract Act as she did not ask for it in the plaint and that, having regard to the fact that no amendment of, the plaint was asked for, the defendant had considerable difficulty in knowing what particular case he had to meet One would have thought that these objections wore perfectly reasonable. The Subordinate Judge on reading the written statement expunged the paragraphs on the ground that they were prolix and. unnecessary. The position, therefore, is, the Judge has, without any allegations being made in the plaint, resolved to proceed with the case on, the footing that the plaintiff claimed an alternative relief and directed the defendants to tile an additional written statement stating their objections to the cause of action not set out in the plaint. He pressed into service an issue which neither party ever thought covered the question and proceeded with the trial. Such a procedure is, in my opinion, not only unwarranted, but likely to prejudice the defendants. It is not open to the plaintiff, who has not amended the plaint or set out the specific facts. and grounds under which she claims the alternative relief, to go on adding to her contentions orally as arguments in the suit proceeded on the merits. I have come to the conclusion that the procedure adopted by the Subordinate Judge is irregular and likely to prejudice the defendants. I do not wish it to be understood that the Subordinate Judge has no power to grant an amendment. Cases have been quoted where parties have been allowed to amend the plaint by asking for alternative reliefs, and when the plaintiff has amended the plaint setting out the reasons for asking for same, the Subordinate Judge might well grant the amendment on such terms as to costs or otherwise as he may think necessary.
6. It has been argued by the Vakil for the respondents that, even if there was an irregularity, the procedure of the Subordinate Judge is one which may be remedied in the appeal against the final decree that may be passed by the Subordinate Judge and that the High Court ought not to interfere in revision. This raises the question of the power of the High Court to interfere in revision under Section 115, Civil Procedure Code, and Section 15 of the Charter Act. Section 115, Civil Procedure Code, empowers the High Court to call for any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto and if such Subordinate Court appears to have failed to exercise a jurisdiction not vested in it by law, or to have failed to exercise a jurisdiction so vested, or to have acted in the exercise of its jurisdiction illegally or with material irregularity, to make such order in the case as it thinks tit. Section 15 of the Charter Act gives the High Court superintendence over all the Courts subject to its appellate jurisdiction.
7. My attention has been called to cases in some of which High Courts have interfered and in some of which they have declined. For the petitioner reference, has been made to several cases. In Veerabadran Chatty v. Nataraja Desikar 14 M.L.J. 329 it was held that the High Court had under Section 15 of the Charter Act power to set aside the order of a Subordinate Judge refusing to grant a commission. A similar view was taken in Somasundaram Chettiar v. Manicka Vasaka Desika Gnana Sammanda Pandara Sannidi 3 M.L.T. 246. In Nagaraja Pillai v. Vythinatha Iyer 9 Ind. Cas 672: (1911) 2 M.W.N. 369 it was held that Section 15 of the Charter Act is sufficiently wide to empower the High Court to interfere even though the case may not fall under Section 115, Civil Procedure Code. In Subramania Pattar v. Narayana Fattar 2 L.W. 230 Mr. Justice Seshagiri Aiyar was disposed to give a more liberal interpretation to the powers of the High Court under Section 115, Civil Procedure Code. In Venkatachallam Pattar v. Parasu Pattar 26 Ind. Cas. 106 Mr. Justice Oldfield was of opinion that errors of law or procedure may he set right by the High Court under Section 115, Civil Procedure Code.
8. The judgment of Justice Mukerjee in Rai Yatendra Nath v. Hari Charan 20 C.L.J. 426 refers to several decisions of the Calcutta High Court and supports the view that a more liberal interpretation ought to be given to the powers of the High Court both under Section 13 5 of the Civil Procedure Code and Section 15 of the Charter Act, and that in exceptional cases the High Court has power to interfere and set matters right by the reversal of interlocutory orders. In the particular case the order of the Subordinate Judge directing the trial of certain issues before evidence being let in was set aside. For the respondent, reference has been made to cases where the High Court declined to interfere. In Ramamurthi v. Kunchuvarthy Venkata Sitaramachandra Row 22 Ind. Cas. 279 : (1914) M.W.N. 95 Justices Sadasiva Aiyar and Spencer held that the Court could not interfere in revision when the aggrieved party has a remedy by suit and doubted the correctness of the decision in Rudrappa v. Narasing Rao 7 Bom. L.R. 12 and in Venkata Snbbia v. Seshachalam 12 Ind. cas. 173 : 10 M.L.T. 549 it was held that the Court will not interfere under Section 115 of the Civil Procedure Code with an order refusing an amendment even though the order was erroneous. In Chidambaram Chetty v. Nagappa Chetty 16 Ind. Cas. 820 the Court refused to interfere under Section 115 as the aggrieved party had a remedy by way of appeal. A similar view was taken by Justice Sadasiva Aiyar in Jagannatha Mudaliar v. Vathyar Appasawmy Mudaliar 24 Ind. Cas. 782 : 1 L.W. 233 and Gaeble v. Ramayi Ammal 24 Ind. Cas. 781.
9. It is difficult to reconcile all the observations made by the learned Judges who took part in the cases above referred to. In case of discretionary powers vested in Courts, I do not think any hard and fast rules can be laid down so as to fetter that discretion in advance in all cases that may arise in future. The observations of Jenkins, C.J., in Hume v. Poresh Chunder Ghose 22 Ind. Cas. 321 that a discretion given in the widest terms by the Legislature ought not to be crystallised or restricted by a series of cases but should remain free and untrammelled to be fairly exercised according to the exigencies of each case,' may well be borne in mind. It seems to me that the power of superintendence and the powers given by Section 115 were intended to give the High Court jurisdiction to see that the proceedings before lower Courts were properly conducted, and I see no reason why the High Court should refuse to set right matters if by doing so it would save unnecessary expense or delay or a multiplicity of proceedings. There may be a right of appeal, but it may be unnecessary to drive a party to the expense and trouble of an appeal by timely interference. Speaking for myself, it seems to me that grave injustice might occur in particular cases if the High Court should decline to interfere where patent irregularities in procedure are brought to its notice and should leave the suit to take what is in its opinion a wrong course, simply on the ground that after all the mischief has been done, the Court can remedy the evil by its appellate judgment. While on the one hand Courts will not generally interfere in revision where an equally efficacious remedy is open to the party by way of appeal, the Court, on the other hand, has to be satisfied that having regard to the facts of each particular case, the remedy by way o appeal would give the party as complete and efficacious a relief as interference at the stage when the High Court has become aware that the lower Court has acted in the exercise of its jurisdiction illegally or with material irregularity.
10. I set aside the order of the Sub-Judge and direct that he proceed with the suit on the lines indicated by me above. He will first direct the plaintiff to amend the plaint an advised, then decide whether the amendment should be allowed after hearing the defendants, and if he allows the amendment lie should direct written statements to be filed on the amended plaint, settle proper issues and proceed with the filial disposal.
11. The respondent should pay the appellant's costs or this revision petition. Costs in the lower Court v ill be at the discretion of the Subordinate Judge.