The Judgment of the ‘Court was delivered by

Graham, J.:— We are invited in this Rule to set aside an order of the Subordinate Judge, 5th Court at Dacca, refusing to expunge two issues which have been framed in an account suit brought by the Petitioners Srimati Sarajubala Debi and others through Air. F.W Needham, representing the Court of Wards, against the Opposite Party (Defendant No. 1) Mohini Mohan Ghosh and others.

The facts which have given rise to the application, as stated therein, are as follows:—

The claim made in the suit covered the period from Ashar 1314, when the Defendant Mohini Mohan was appointed Naib of Dehi Kuromitola of the Bhawal Estate, up to the time when he was suspended in Ashar 1325 B.S At the date when he was appointed, Kumar Ranendra Narayan Rai, Kumar Romendra Narayan Rai and Kumar Robindra Narayai Rai were the proprietors of the Bhawal Estate in equal shares. On the 15th Jaist 1314 the Defendant No. 1 executed a jamminnama or service security bond in favour of the three Kumars stating therein that, as he had no immoveable property, his father would execute another bond as his surety and would pledge some immoveable property. That bond was in due course executed on the 19th Jaista 1315 and, as there was a mistake in it, and as the second Kumar Romendra Naravan Rai died on the 8th May 1909 (Bysack 1316), a rectified deed was executed on the 29th Ashar 1316 in favour of the two surviving Kumars and the widow of the second Kumar as his heir.

The first and third Kumars died on the 14th September 1910 and 13th September 1913 respectively leaving their widows, the Plaintiff's Nos. 1 and 4, as heirs, and subsequent thereto the Court of Wards declared all the three widows to be disqualified proprietors, and assumed cl targe of the properties.

In the year 1920 an individual dressed in the garb of a sanyasi appeared on the scene and claimed to be the second Kumar, but the Board of Revenue after making an enquiry found that the second Kumar was dead and that the claimant was an impostor. In the meanwhile the Defendant No. 1 had been dismissed from his post and had been called upon to explain and adjust his accounts, and on his failing to do so, the suit out of which the present application has arisen was filed on the 25th June 1921.

In his written statement filed on the 18th November 1922 the Defendant No. 1 raised inter alia the plea that as the second Kumar was alive, his widow the Plaintiff No. 2 had no right or title in the estate, and that therefore neither she nor the Court of Wards on her behalf could sue for accounts in respect of those properties, and an issue (No. 3) was accordingly framed in these terms:—

“Can Plaintiff No. 2 maintain this suit? Is her husband alive?”

Upon the Plaintiff's raising objection the Subordinate Judge held that, as the suit was based on kabuliyats executed by the Defendant No. 1 in favour of Plaintiff No. 2 and the Court of Wards, and as the validity of the kabuliyats was not questioned, the issue suggested did not arise, and it was accordingly struck off. The Defendant No. 1 then on the 14th July 1921 filed an additional written statement alleging that he had been induced to execute the kabuliyats on misrepresentation as to the death of the second Kumar, and in consequence of coercion and threats that he would be dismissed if he did not execute them. They were not therefore, it was urged, binding upon him, and he asked that issues might be framed upon his additional written statement. The Plaintiffs objected, but the Court yielding to the Defendant's prayer accepted the additional written statement and framed thereon issues Nos. 9 and 10 in the following terms:—

“9. Were the documents mentioned in the plaint executed under undue influence, misrepresentation, and a mistake of facts as alleged in the written statement?

10. Is the second Kumar Romendra Narayan Rai alive? If so, is the suit maintainable at the instance of Plaintiff No. 2?”

The Plaintiffs then filed a petition stating that the suit was maintainable even assuming that the second Kumar was alive, and praying that issue No. 10 might be tried on that supposition, and the Court on the 13th January 1923 held that, if the Kumar was alive, the suit was not maintainable and refused to expunge issue No. 10.

Subsequently the Plaintiffs by another petition gave up so much of the claim as related to the Defendant's service prior to the death of the second Kumar on the 8th May 1909, and prayed that in the circumstances issues Nos. 9 and 10 might be expunged, but the Court by its order of the 25th September 1923 refused to expunge them, and the Plaintiffs thereupon moved this Court and obtained the present Rule.

A preliminary objection was taken on behalf of the Opposite Party to the hearing of the Rule on the ground that the application was not properly stamped, and it was submitted that upon the affidavit filed by the Petitioners no case has been made out for the exercise of the discretion vested in us to allow the court-fee to be put in after the due time. We do not think there is any substance in this objection, and on the facts stated in the affidavit we are of opinion that the explanation ought to be accepted and the court-fee allowed to be put in, and we order accordingly.

Coming to the merits it is urged on behalf of the Petitioners that the two issues referred to above are unnecessary for the decision of the suit, which is based upon a contract for service and in which no question of title to immoveable property is involved; that, if the question of title is allowed to be raised, the scope of the suit will be unnecessarily widened resulting in serious delay and expense out of all proportion to the real issue involved and that in fact the entire character of the suit will be changed. It was further suggested that the Defendant No. 1 having made common cause with the sanyasi claimant has sought to raise these issues with the ulterior object of helping him in his campaign against the Plaintiffs, it being pointed, out that any finding arrived at in this case would not be binding upon the claimant, who is not a party to the litigation, though it would be upon the Plaintiffs.

On behalf of the Opposite Party it is urged that the long established practice of this Court has been not to interfere in the exercise of its Revisional Jurisdiction with interlocutory orders where another and an adequate remedy is open to the applicant that remedy will be available by means of an appeal after the suit has been decided, and that no case has been made out for our interference.

We are, not much impressed with this non possumus argument. No doubt it has been the settled practice of this Court to interfere as little, as possible with interlocutory orders where an alternative remedy exists. It cannot however be laid down as a hard and fast rule that the Court will under no circumstances interfere. On the contrary there is ample authority for the view that this Court can and will interfere with such orders where they may lead to a failure of justice, or to irreparable injury, see Dhapi v. Ram Pershad , Gobinda Mohon Das v. Kunjo Behary Das , Amjad Ali v. Ali Hussain Johar and Siva Prosad Ram v. Tricomdas Goverji Bhoja . The question is whether the conditions referred to above are present here so as to justify us in interfering. The decision of the matter appears to depend upon two considerations, viz., first, whether the proposed additional issues are relevant and necessary; and secondly, whether, if they are not so, the trying of them is likely to lead to a failure of justice, or to irreparable injury to the Petitioners. The first of these is the really crucial point because, if the issues are necessary and proper, it could hardly be urged with logic or propriety that they may involve a failure of justice, or irreparable injury, since, if they are material and necessary issues, the Defendant is entitled to go to trial upon them, however great the expenditure of time and money may be. But are they necessary? Primâ facie one would be inclined to say that the trial of such an issue as to title, involving the mass of evidence, documentary and otherwise necessary to the decision thereon, is wholly outside the scope of a suit for accounts, especially in view of the fact that “the claim for the period prior to May 1909 was withdrawn. Whatever may have been the legal position in regard to the period up to May 1909, it would seem that after July 1909, when the father of the Defendant No. 1 executed the deed of rectification in favour of the two Kumars and the widow of the second Kumar, it was no longer open to the Defendant No. 1 to refuse to account to the widow. There can be no question that subsequent to July 1909 the Defendant No. 1 was permitted to make his collections by virtue of that deed executed by his father indemnifying the two Kumars and the widow in respect of acts done by the Defendant No. 1, and that all collections made after that date were made on account of the two Kumars and the widow. In view of those facts it appears to us that the Defendant cannot be allowed to raise the question whether he is liable to account to the widow, and to set up the title of a third party.

There can be no doubt that under sec. 51 of the Court of Wards Act (IX of 1879) the Court of Wards alone was legally competent to institute the suit. The second Kumar had been held by competent authority after due inquiry to have died in 1909, and unless and until it is established in a Court of law that he is alive and that his title subsists, the Manager under the Court of Wards was the only person legally competent to institute the suit on behalf of the estate.

Having regard to these facts and considerations we hold that the trial of these two issues in the present suit is unnecessary.

The next question is whether, assuming them to be unnecessary and irrelevant, the trial of them is likely to lead to a failure of justice, or to irreparable injury to the Petitioners. We think that both possibilities undoubtedly exist, indeed that there is something more than a bare possibility that one or both of these consequences may ensue. It is clear from the materials before us that, if the issue of title is tried, it will involve the importation of a mass of evidence both documentary and oral. Applications have already been made for the examination on commission of a number of witnesses. It seems to us to be eminently undesirable that all this evidence should be gone into in a simple account suit. It is plain moreover that very great delay in the disposal of the suit would necessarily result. The value of the suit is stated to be Rs. 1,926 odd, and it has been suggested before us that, if these issues are included, the cost of the litigation may amount to something like a lac of rupees. That may be an exaggerated estimate. The fact however remains that the trial of these issues will undoubtedly entail an expenditure both of time and money wholly out of proportion to the matter in dispute, and the delay consequent upon the scope of the suit being thus widened might be extremely prejudicial to the Plaintiffs and result in their failing to obtain justice. Nor can there be any doubt that, if the issues are unnecessary, as we hold they are, the trial upon them is likely to cause irreparable injury to the Plaintiffs since they will be put to the enormous extra-expenses involved, and, as far as can be seen, with little prospect of recovering those expenses, even if they succeed in the suit. It may be true that the Plaintiffs are persons of substance and well able to bear the extra expense. That however is beside the point and cannot alter the fact that the Plaintiffs may suffer irreparable loss. It is plain from the materials before us that the Defendant No. 1 is not a person of any substance, and in fact it was on that account that the second jamminnama was taken from his father. That being so it becomes problematical whether in the event of their success in the litigation the Plaintiffs would be able to recover the costs from the Defendant.

The suggestion that these issues should be added is presumably due to an apprehension in the mind of the Defendant No. 1 that after the suit has been decided, and if the decision be adverse to him, he may hereafter still find that he is accountable to the sanyasi claimant in the event of his succeeding in establishing that he is the second Kumar. Assuming that such an apprehension exists the object in view would seem to be to secure a speedy decision of the account suit without in any way prejudicing the Defendant, and we suggested subsequent to the hearing of the Rule that the parties should consult together with a view to arriving at a solution of the difficulty satisfactory to both sides. In the result the learned Advocate-General intimated on behalf of the Petitioners that both the Manager under the Court of Wards and the widow (Plaintiff No. 2) were prepared to execute bonds of indemnity in favour of the Defendant No. 1 indemnifying him against any loss whatsoever. It seems to us that is a fair offer and that the Defendant No. 1 can have no reasonable excuse for refusing to accept it.

Upon a careful consideration of all the facts and circumstances we are of opinion that the trial of the suit ought not to be complicated by dragging, in these issues which are outside its scope and wholly irrelevant and unnecessary, and the trial of which would inevitably prolong the litigation to the serious prejudice of the Plaintiffs. We accordingly make the Rule absolute, direct that the issues in question Nos. 9 and 10 be expunged and that the suit be now proceeded with according to law on the indemnity bonds being executed by the Manager under the Court of Wards and by the Plaintiff No. 2 in accordance with the offer made by them.

The costs of this Rule will be paid by the Opposite Party to the Petitioners. We assess the hearing fee at three gold mohurs.

N.G