1. C. Rule Ps. Non. 859 and 850 of 1921.
2. These civil revision petitions relate to two orders passed by the Subordinate Judge of Mayavaram, dated, respectively, 12th November 1921 and 29th November 1921 whith run as follows:
It is argued on behalf of the plaintiff that Issues Nos. 3, 4 and 9 being preliminary Issues should be tried first. The case was being posted along with Original Suit No. 8 of 1917 on the belief that the parties in this suit wilt agree to the evidence recorded in Original Snit No. 8 of 1917 being treated as evidence in this suit also. But the learned Vakil for the plaintiff in this snit urges that on the pleadings without any farther evidence being let in he is prepared to substantiate his case as against the defendant on Issues Nos. 3, 4 and 9 and I cannot say that he had no right so to contend.
The suit is posted for argument on Issues Nor. 3, 4 and 9 to 1st December.
Note:---The plaintiffs Vakil states that he does not give up thereby the other issues and 2, 'This is opposed by plaintiff. The suit is posted for preliminary argument to 1st December after consideration. I see no reason to reconsider my order already passed. Rejected.
3. The suit in which they were parsed is Original Suit No. 56 of 1920 and is brought by the plaintiff, a son, against his father, far the recovery of certain land which had come to the latter under a se-called 'deed of indenture' dated 11th May 1905. This deed was made between one Tirnnarayana Pillai and the present petitioner and recites that Tirnnarayana had become entitled to certain properties as reversionary heir of one Venkatakrishna Pillai on the death of the latter's mother in 1905 : that plaintiff (here in) contended that the mother of Venkatakrishna Pillai had adopted him, which adoption was admittedly not valid as no authority had been given by the sapindas. The father took possession of the properties given by the indenture on behalf of his son. In 1906 the father discovered that Tirunarayana was not an heir of the deceased Venkatakrishna Pillai at all and he thereupon in stinted a Suit No. 8 of 1917 for, inter alia, setting aside the deed of indenture as having been executed by him owing to the fraud of Tirunarayana This suit has been partly heard but according to the note of the Subordinate Judge it has been adjourned from time to time along with the present suit and on 4th October 1921 an order was passed adjourning Original Suit No. 5 of 920 to 1st November 192 for arguments and orders whether this is to go with Original suit No. 8 of 1917 or to bewared separately. Toe order was passed on 12th November 1921 and is one of those now sought to be revised There has been a very full argument before me on both sides and the complaint of the defendant (father) in the shit is that not only was the order irregularly made but the action of the Subordinate Judge in directing Issues Non. 3, 4 and 9 to be tried as preliminary issues will seriously prejudice im. the issues in question are as follows:
3. Whether the defendant is entitled to rely upon any such possession even after the deed of indenture dated. (sic)h May 1(sic)05 and whether the defendant is not estopped from setting up such possession in his own right as against the plaintiff?
4. Whether the defendant is estopped from setting up a title to the properties in himself by reason of the indenture?
9. Whether the plaintiff has a squired a title by prescription by the properties having been held by his guardian on his behalf for over 12 years?'
4. Mr. Ramachandra Iyer for defendant complains that Issues Nos. 1 and 5 have been omitted, these being in character quite as preliminary as there selected by the Subordinate Judge.
5. The power to order trial on preliminary issues is contained in Order XIV; Rule 2 and Order XV, Rule 3 (1). Order XIV, Rule 2 clearly applies when on settlement of issues the Court thinks there are issues of law upon which the case or some part thereof may be disposed of, then those issues are to be tried first and settlement of issues of fact may be postponed.
6. 0. XV, Rule 3 (1) applies after issues bave been framed and allows the Court to determine issues of law, if satisfied that no further argument or evidence than the parties can at once adduce is required upon such of the issues as may be sufficient for the decision of the suit. If, however, the finding on those is not sufficient for decision, the Court shall postpone further hearing of the suit, Mr. T. Rule Ramachandra Iyer argues that the former rule is prior to issues, the latter applies to the first hearing only and when that day is passed, the Court has no power to select issues of law for determination as preliminary issues. Reliance is placed on a judgment of Mr. Justice Mookerjee in Yatindre Nath v. Bari Charan 26 Ind. Cas. 954., which held that an application to try certain issues first whith was made long after the date for first hearing took it out of the application of Order XV, Rule 3. As against this there was the ruling in Kuarmani singha v. Wasif Ali 28 Ind. Cas. 818 : 19 C. W. N. 1193. which lays down that 0. XIV, Rule 2 may be applied also when the settlement of issues of fast have not been postponed. I may add that, in my opinion, there is no reason that I can see to confine the application to try certain issues as questions of law to the date of first hearing, and especially to insist on that rule in the case of adjourned hearings, for it is common ground that only issues have been settled in this suit and the orders now sought to be revised made and there has been no actual first hearing to far. The question really is, 26 Ind. Cas. 954, Can I interfere 55 Ind. Cas. 89. If I can, ought I to do so under the circumstaaces of the present case? An to 26 Ind. Cas. 954., the older view here is expressed by Muitnsami Iyear, J. in Nieam of Hyderabad, In 9 M. k 256. and was against interference with interlocutory orders. Sea also Ohinnu v. Sambanda Moorthi 23 Ind. Cas. 522. which, however, excepted a wanton abuse of the powers of the Court. In Y tandra Nath v. Hari Charan ((sic)) it was said that Court could interfere in very exceptional cases. In Sitaramaya v. Ramappaya 39 Ind. Cas. 106. it was held that the Court can interfere if manifest injustice would otherwise he done; the question being one of jurisdiction, and the fact that there is a final appeal would not prevent interference. Here, as pointed out by Mr. Venkatarama Sastri, the question was the addition of a party and the matter was actually one of jurisdiction. In V nkat-ch -lam pattar v. parasu Pattar 26 Ind. Cas.: 16 M., L. T. 156. it was held that there might be interference for perversity, i e., conscious deviation from rules of law or procedure. Latish India Steam Navigation Co. v. Secretary of State for Ind. a 8 Ind. Cas. 107 : 15 C. W. N. 87. Amjad Ali v. Ali Hussain 6 Ind. Cas. 574 : 15 C. W. N. 353. Khirode Chandra Ghoshal v. Saroda (sic) 7 Ind. Cas. 436. Charu Chandra Dutt v. sarat Chandra singh 8 Ind. Cas. 87., are a series of cases to all of which Mookerjee, J., was a party. The first of these cases lays down that the High Court is competent to set matters right when an interlocutory order has been made without jurisdiction or under such circumstances as are likely to cause irreparable injury to one of the litigants. In the second case the same test of irreparable injury in applied. In the third and fourth cases the jurisdiction of the High Court to interfere with the interlocutory order is affirmed, if such interference is necessary in the interests of justice. In Vuppuluri Atchayya v. Sri Seetharamachandra 18 Ind. Cas. 555the Munsif had returned a plaint on the ground that a Civil Court had no jurisdiction. On appeal the Subordinate Judge restored the suit to the Munsif's file. Held in revision by the majority, that the High Court could interfere under Section (sic)15 of the Code of Civil Procedure as the Appellate Court had erroneously decided in the exercise of its jurisdiction as an Appellate Court that Munsif had or had not jurisdiction. I doubt if this has any application to the facts of the present case. Wall is, C. J., based his decision on the third part of Section 115 while Sundara Iyer, J., based his on the first In Buddhoo Lal v. Mewa Ram 63 Ind. Cas. 15 : 19 A. L. J. 558. the majority of the Fall Bench held that where one of several issues in a suit had been decided and there was a remedy by appeal no revision lay ac there was no cane within Section 115 of the Code of Civil Procedure and in Kumar Chandra Kishore Roy v. Basat Ali (18) the majority of the Calcutta High Court held that the Court cannot, by exercising its powers under section (sic) of the Charter Act interfere with a decision of a Subordinate Court from which no appeal or revision under Section 115 of the Code of Civil Procedure lies to High Court.
7. I hare purposely refrained from citing all the cases that were quoted before me but I have attempted to make a selection which will give a fair view of the somewhat divergent opinions that have been expressed by the various High Courts.
8. It seems to me, as a fair result of these opinions, impossible to say that in no case whatever will the Court interfere with an interlocutory order, but that that interference must be exercised with extreme diligence, the general rule being against such interference. The latter may be justified when the order sought to be revised is in fact perverse or irreparable injury will be caused unless the revision h allowed. I, therefore, proceed to the second point.
9. The first objection is that the order was made without hearing the Vakil for the defendant on a suggestion by Mr. T. Rule Venkatarama Sastri to the lower Court. Under Order XV, Rule. 3 (i), the satisfaction of the Court can only be prima facie, otherwise there would be no scope for sub-Rule (2). It appears, however, from the affidavit of the defendant that his Vakil did argue the question and I cannot say that the order is illegal or irregular on that ground. The next and much more serious argument is that defendant will suffer irreparable injury by the determination of Issues Nos. 3, 4 and 9 as preliminary issues. The contention of petitioner is that Issue 23 Ind. Cas. 522. which is admittedly a question of mixed law and fait---being estoppel by conduct---will conclude the case one way or other, also that Issue No. 1 should bave been included. This issue involves the question of invalidity of Tirunarayana's adoption which he had set up as entitling him as a reversioner to the property and also the invalidity of the deed of indenture. Issues Nos. 3 and 4, both flow from the indenture. The defendant put forward prior to the indenture a claim of adoption on behalf of the plaintiff by the mother of Venkata Krishna Pillai in order to make him a nearer agnate than Tirunarayana whose alleged adoption was to Venkatakrishna Pillai himself. The adoption of plaintiff is disclaimed in the indenture by his guardian (defendant) and the argument is to be that defendant cannot be heard to cay that be bas a prior and better title in himself. It is also to be argued that defendant by his execution of the deed of indenture is estopped. Defendant will admittedly have a right of appeal, however the decision on these preliminary issues goss. His complaint is that he will be put to inconvenience and expense by possibly having to file several appeals. But this is anticipating that the decision of the Court will be against him on those preliminary issues, or one or more of them. I do not think that I am warranted in making such assumption at the present time. I have in Ventala Verrarazu v. Kuruvella Subbarayudu (1921) M. W. N. 507. expressed the opinion that this Court will not interfere in revision where the party has a separate remedy. Can I say that the Court below acted perversely or in a way to cause irreparable loss to defendant P The issues selected are very material to the case; and I cannot find that, becanse it would suit the defendant better to have Issues Nos. 1 and 5 decided before the others, the order in perverse or is likely to cause injury which cannot be largely remedied by costs if he succeeds. There is no fear that his issues will not be eventually tried if the decision of the others is not sufficient to dispose of the case If the Subordinate Judge comes to that opinion the defendant has the right of appeal, The Subordinate Judge certainly had, in my view, and for the reasons giver, jurisdiction to make the order be did, and the fact that it may possibly result in inconvenience and expense to defendant is not a ground to interfere in revision. I cannot say there is any injury to defendant in the actual selection of those issues as preliminary and as I have said, it seems to me I cannot anticipate the possible consequences of a decision on them adverse to him. I therefore, think that on this point defendant's petitions fail.
10. The next point argued is, that Section 10 of the Code of Civil Procedure is a bar to the trial of this suit till No. 8 of 1917 is determined. It is said that Issues Nos. 1, 3 and 5 in that suit involve the determination of Issue No. 1 in the present suit. That suit as stated between the present defendant as plaintiff and Tirunarayana Pillai. It is, therefore, not between the same parties as the present suit. Section 10 speaks of a previously instituted suit between the same parties or between parties under whom they or any of them claim litigating under the same title; no argument has been addressed to me to show that the present suit and No. 8 of 1917 would fall under the litter words of the clause, but I am referred to a judgment of Spencer and Ramesam, JJ, in Civil Revision Petition No 687 of 1920 Ramakrishna Pillai v. Bulakrishna Aiyar 62 Ind. Cas. 712. which dealt with the propriety of certain Vakils appearing for the defend, ant in this suit, they having already acted for him in No. 8 of 1917 where he is the plaintiff. It is there said that in both suits questions arise as to the validity of the indenture and its binding character on defendant and also of estoppel. No doubt, soma of the questions in the two suits are the same but the learned Judges had not to deal with the applicability of Section 10 of the Code of Civil Precedence. Mr. T. Rule Ramachandra Iyer relies on Wahid-un nissa Bibi v. Zamin Ali Shah 55 Ind. Cas. 89. and Sivaprasad Ram v. Trincomdas 27 Ind. Cas. 917 : 42 C.k 926. In the former case it was held that the widow was claiming in both suits on the same title and that the Court below had done right in staying one of the suits. In Sultanate Jahan Begam v Sundar Lal 58 Ind. Cas 90. it was held that an application under Section 10 of the Code of Civil Procedure is not a case and that no revision would lie under Section 115 of the Code of Civil Procedure. In Sivaprasad Sam v. Tricondas 27 Ind. Cas. 917. the jurisdiction under Section 10 is limited to stopping a suit if the circumstances mentioned in the section are found to exist. On the materials before me I clearly cannot so find here. In that ease the Judge (page 931*) had come to no finding as to whether the parties were litigating under the same title but proceeded to decide the question of ret judicata which was clearly materially irregular. Under these circumstances, I cannot say that Section 10 applies here, and I must find this point against the defendant and these civil revision petitions must be dismissed with costs.
C. Rule P. No. 489 of 1921.
11. This is a revision petition against the amendment of plaint and consequent settlement of an additional Issue No. 9 on 7th April 1921. The amendment is as to prescriptive title based on possession of defendant benami for plaintiff. It appears to me that Issue No. 3, is involved in Issue No. 9. If plaintiff is wrong on No. 3, 9 will go. In Penumalri Vasantarayadu v. Reddi Suhbamma 14 M. L. T. 588 : (1914) M. W. N. 98. it was held that the Court would Dot interfere with an order refusing amendment, as the plaintiff could attack the order on appeal if the decision was against Lim. In Vasudeva Padhi Khadanga Gatu v. Mayani Dev in Bakshi Mahapatrulu Guru 24 M.k 387 : 5 C. W. N. 545 : 3 Bom. LR 303 it was remarked that prescriptive title need not be expressly pleaded as it is only evidence of a party's title.
12. The amendment was within the discretion of the Court (O. VI, Rule 17), and for the reasons stated above I am unable to say that this amendment id a matter which I should deal with in revision. It has not been argued that the amendment changes the character of the suit or would involve any material injustice to the defendant. This civil revision petition must, therefore, be dismissed with costs.