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P. Bathinaiah Vs. P. Visweswara Pillai and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberL.P.A.S.R. No. 27722 of 1974
Judge
Reported inAIR1975AP11
AppellantP. Bathinaiah
RespondentP. Visweswara Pillai and ors.
Advocates:I.A. Naidu, Adv.
Excerpt:
civil - maintainability of letters patent appeal - clause 15 of letters patent (andhra pradesh) and order 41 rule 27 of code of civil procedure, 1908 - clause 15 imposed bar against further appeal in cases decided by single judge of high court in exercise of second appellate jurisdiction - unless judge declared it to be a case for appeal - held, letters patent appeal not maintainable against order of single judge of high court. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is impleaded and has been given.....sambasiva rao, j. 1. the question which is referred to us is whether a letters patent appeal under clause 15 is maintainable against the judgment of a single judge of this court allowing an appeal brought by the respondent against the order of the subordinate judge. tiru-pathi remanding the suit brought by the appellants to the trial court for disposal on merits.2. what happened in this case is; the plaintiff. who seeks to bring this letters patent appeal, filed o. s. no. 149 of 1966 in the district munsifs court, srikalahasthi for permanent injunction in respect of certain properties. that claim was founded on two grounds. first of them is that he was adopted by jagannadhan pillai who was the owner of half share in the schedule property and consequently he became entitled to that share.....
Judgment:

Sambasiva Rao, J.

1. The question which is referred to us is whether a Letters Patent Appeal under Clause 15 is maintainable against the judgment of a single Judge of this Court allowing an appeal brought by the respondent against the order of the Subordinate Judge. Tiru-pathi remanding the suit brought by the appellants to the trial Court for disposal on merits.

2. What happened in this case is; The plaintiff. who seeks to bring this Letters Patent Appeal, filed O. S. No. 149 of 1966 in the District Munsifs Court, Srikalahasthi for permanent injunction in respect of certain properties. That claim was founded on two grounds. First of them is that he was adopted by Jagannadhan Pillai who was the owner of half share in the schedule property and consequently he became entitled to that share on the demise of his adoptive father. The second ground is a family arrangement letter executed by his natural father, Sundaram Pillai in regard to the other half share. He, however, failed to produce before the trial Court the letter said to be evidencing the alleged family arrangement. Consequently. the trial Court dismissed the suit in regard to the half share which was founded on that letter. The plaintiff carried the matter to the Subordinate Judge's Court. Tirupathi in A. S. No. 207 of 1971 and in the appeal he applied under Order 41. Rule 27, Civil P. C. for receiving the family arrangement letter as additional evidence. The lower appellate Court admitted the document, allowed the appeal and remanded the case back to the trial Court for fresh disposal in respect of the claim based on the family arrangement letter. This time the defendants filed C. M. A. No. 562 of 1972 in this Court under Order 43. Rule 1, Civil P. C. against this order of remand of the first appellate Court, chinn-appa Reddy. J. before whom the C. M. A. came UP for disposal, allowed it setting aside the order of the first appellate Court admitting additional evidence, and remitted the appeal back to that Court for its disposal on merits. The plaintiff seeks to impugn this order of Chinnappa Reddy, J., by filing this Letters Patent Appeal.

3. The Office took an objection that the C.M.A. disposed of by Chinnappa Reddy, J. is in the nature of a second appeal and that no letters patent appeal lies against an order therein unless the learned Judge himself granted leave for appeal. But the learned Judge did not mention anything in his order about the granting or refusing leave, obviously for the reason that no such request was made before him. Sri I. A. Naidu, learned counsel for the appellantmaintained that a Letters Patent Appeal does lie and so this reference has been made to us to decide the question as to the maintainability.

4. The Letters Patent Appeal is sought to be filed under Clause 15 of the Letters Patent. The language of that clause clearly answers the question referred to us. It says that an appeal shall lie to the High Court from the judgment of one Judge of the High Court or one Judge of any D. B. Court, pursuant to Section 108 of Government of India Act, While providing for this, it clearly excludes from the ambit of this appeal, judgments passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court. Clause 15 does not stop with this. It proceeds to provide that

'notwith standing anything hereinbefore provided an appeal shall lie to the said High Court from a Judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act made (on or after the 1st day of February 19291 in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, where the Judge who passed the Judgment declares that the case is a fit one for appeal.'

5. The following position emerges from the above provisions of Clause 15. It does not provide for an appeal against the judgment passed by a Single Judge of the High Court in respect of a decree or order in the exercise of appellate jurisdiction by a Court subject to the superintendence of the High Court, unless the Judge who has passed the judgment declares that the case is a fit one for appeal. The reason for this is patent. When a single Judge of this Court sits in appeal over a Judgment or order passed by the appellate Court in the exercise of its appellate jurisdiction, the single Judge discharges his second appellate jurisdiction. An appeal over the decision of the learned Judge rendered in the exercise of such second appellate jurisdiction shall not be easily entertained. Such an appeal is permissible only when the Judge himself declares that the case is a fit one for appeal.

6. It follows therefore that if there is no such declaration or certificate by the single Judge while disposing of the case, no further appeal lies under Clause 15 of the Letters Patent. We are supported in this view by a Division Bench of this Court in Vadappalli Krishnamacharyulu v. Sidda Veera Raju. : AIR1964AP527 . Though Clause 15 of the Letters Patent was not referred to in terms in the decision, the learned Judges followed its substance.

7. Sri I. A. Naidu, relies on the observations of Ramesam. J. and Ananta Krishna Aiyar. J. in the Full Bench decision in Paramasivan Pillai v. Ramaswami Chettiar. (1933) 65 Mad LJ 222 = (AIR 1933 Mad 570 (FB)) in support of his contention that a Letters Patent Appeal does lie against the order of a single Judge of this Court in a C. M. A. In the first place, it must be noted that what the Full Bench in that case was dealing with was a Letters Patent Appeal against an order on a C. M. A., which had been in its turn filed against the order of the trial Court in exercise of its original jurisdiction. That means, the C. M. A. against such a letters patent appeal filed was in the nature of a first appeal. The order impugned in the C. M. A. was not passed by a Subordinate Court in the exercise of its appellate jurisdiction. It is thus manifest that on the facts, the case before this Full Bench is clearly distinguishable and it was obviously a case within the first part of Clause 15. Ramesam. J. observed at page 225 = (At p. 572 of AIR) that 'Civil Procedure Code does not control the section of the Letters Patent.' The same view was expressed by Ananta Krishna Aiyar, J. also at page 235 = (At P. 576 of AIR). But this does not help the contention of the appellant in the case before us. We have already referred to the clear language of Clause 15 which provides for further appeal in cases of this nature, only when the single Judge who has disposed of the C. M. A. has declared that it is a fit case for further appeal. So. when the provisions of the Letters Patent prevail, the position is exactly the same as we have pointed out above.

8. Reference is also made to a recent decision of Obul Reddi. J. (as he then was) and one of us viz.. Madhava Rao. J. in Southern Roadways (P.) Ltd. v. E. S. I. Corporation. (1973) 27 Fac LR 49 - (1973 Lab IC 1555 (Andh Pra)) wherein it was held that:

'When there is no bar or prohibition imposed by the Legislature regarding a further or second appeal to the Supreme Court, the question whether any further appeal lies or not, has to be determined according to the rules of practice and procedure of that Court.' This principle is in our view, an unexceptionable one. As we have pointed out, there is a bar imposed by Clause 15 of the Letters Patent against further appeal in such cases, unless the Judge who has disposed it of has declared that it is a fit case for appeal.

9. In the absence of such declaration, it unambiguously emerges from the language of Clause 15 of the Letters Patent that no Letters Patent Appeal against the order of Chinnappa Reddi, J. in C. M.A. No. 562 of 1972 is maintainable. The reference is answered accordingly. However, this does not mean that the person who seeks to prefer letters Patent appeal cannot do so. if he has obtained leave of the Judge concerned.


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