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2000 DIGILAW 27 (AP)

Bahabalendruni Ramamurthy v. Uppala Kirshha Murthy

2000-01-22

A.GOPAL REDDY

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A. GOPAL REDDY, J. ( 1 ) THESE two revision petitions are filed under Article 227 of the Constitution of india against the common order dated 6-8-1996 passed by the learned Special assistant Agent, Mobile Court, bhadrachalam, Khammam District in LA. No. 70 of 1996 in LA. No. 16 of 1995 in O. S. No. 27 of 1995. ( 2 ) IN C. R. P. No. 3020 of 1996 the revision petitioner filed a suit in O. S. No. 46 of 1994 on the file of the learned Special Assistant agent, Mobile Court, Bhadrachalam, seeking permanent injunction over the land to an extent of Ac. 5-95 cents in Survey no. 97/1 situated at Nuguru village, venkatapuram Mandal, Khammam district, against one Uppala Krishna murthy, the first respondent herein. Petitioner filed I. A. No. 24 of 1994 for interim injunction restraining the respondent therein from interfering with the petitioner s possession. Learned Special assistant Agent, Bhadrachalam, by order dated 17-11-1994 granted interim injunction and by common order dated 29-6-1995 petitioner was granted police protection in i. A. No. 15 of 1995. The second respondent- gote Ananthamma in these revision petitions also filed a suit in O. S. No. 27 of 1995 on the file of the learned Special assistant Agent, Mobile Court, bhadrachalam, Khammam District for permanent injunction restraining the petitioner herein from interfering with her possession over the suit schedule lands and obtained interim injunction in I. A. No. 16 of 1995 on 29-6-1995. Thereafter, the revision petitioner filed I. A. No. 34 of 1995 in O. S. No. 27 of 1995 to stay the proceedings stating that he has earlier instituted a suit for the same relief over the same land. On coming to know the filing of the earlier suit, the second respondent filed an interlocutory application to implead her as party respondent in O. S. No. 46 of 1994 and the same is posted to 27-2-1996. When the interlocutory application came up for hearing, the respondent came to know that the injunction granted in her favour on 29-6-1995 in I. A. No. 16 of 1995 in O. S. No. 27 of 1995 was vacated and the injunction granted in favour of the revision petitioner herein in I. A. No. 24 of 1994 in O. S. No. 46 of 1994 was made absolute. Therefore, second respondent filed IX No. 70 of 1996 in LA. Therefore, second respondent filed IX No. 70 of 1996 in LA. No. 24 of 1994 in O. S. NO. 46 of 1994; and I. A. No. 71 of 1996 in I. A. No. 16 of 1995 in O. S. No. 27 of 1995 to set aside the order made on 31-01-1996 in I. A. No. 24 of 1994 in O. S. No. 46 of 1994 and I. A. No. 16 of 1995 in O. S. No. 27 of 1995 respectively stating that the learned Special Officer, who retired on 31-1-1996 has not conducted the Court proceedings and in fact, O. S. No. 27 of 1995 and the application filed by her to implead her as party respondent in O. S. No. 46 of 1994 were posted for hearing on 27-2-1996. When the Court clubbed both the suits and posted for arguments on 27-2-1996 vacating the stay on 31-1-1996 and without issuing any notice to her is improper and prayed to restore the orders passed in I. A. No. 16 of 1995 dated 29-6-1995. The same was contested by the petitioner by filing a counter stating that the Tribunal has no power to review its own order passed on 31-1-1996 and only clerical and arithmetical error crept in the order alone are liable for corrections, but not for the review under rule 18 of the Andhra Pradesh Agency rules (for short the Rules ). Learned special Assistant Agent, Mobile Court by order dated 6-8-1996 set aside the order vacating the interim order dated 31-1-1996 in I. A. No. 16 of 1995 in O. S. No. 27 of 1995 and posted the I. A. No. 34 of 1995 which is filed by the revision petitioner herein to stay the suits till 14-8-1996. Consequently order was passed making the injunction absolute in I. A. No. 24 of 1995 and I. A. No. 70 of 1996 the matter is posted to 14-8-1996. ( 3 ) QUESTIONING the same, the revision petitions are filed. Learned Counsel for the petitioner Mr. P. V. Ramana contended that under Rule 18 of the Rules only clerical and arithmetical errors in the judgments or orders are liable for corrections, but the same will not authorise the Tribunal to review its earlier order passed on 31-1-1996. ( 3 ) QUESTIONING the same, the revision petitions are filed. Learned Counsel for the petitioner Mr. P. V. Ramana contended that under Rule 18 of the Rules only clerical and arithmetical errors in the judgments or orders are liable for corrections, but the same will not authorise the Tribunal to review its earlier order passed on 31-1-1996. Rule 54 of the Rules empowers the learned agent to the State Government to review his own judgment or order, and Rule 56 of the Rules contemplates six weeks period of limitation for an appeal from the decree of an Agency Munsif or for review of the judgment or order. But there is seven and half months delay in filing the application in the present case and without any delay petition, entertainment of application and setting aside the order is bad. He further pressed that this Court by order dated 6-8-1996 suspended the order passed by the lower Tribunal. Hence prays to allow the revision petitions with a direction to the learned Special Assistant Agent, Mobile court, Bhadrachalam to dispose of both the suits as expeditiously as possible. ( 4 ) ON the other hand Sri K. Manikyala rao, learned Counsel for the second respondent contended that the petitioner is the foster son of one Venkatarama Rao, and the said Venkatarama Rao, by registered will bequeathed the property in the name of Jaya Ramaswamy, who is the natural son. She purchased the land to an extent of ac. 4-00 in Survey No. 97/1 from J. Rama swamy. When the petitioner tried to interfere with her possession, she filed a suit and obtained injunction on 25-9-1995 and revision petitioner filed I. A. No. 34 of 1995 to stay the proceedings and the matter is posted to 27-2-1996. But curiously, the then presiding Officer, who retired from service, passed orders on the date of his retirement and on the said date no Court proceedings were conducted. As the order is passed in violation of principles of natural justice and without intimating about the advancement of the case, the order of the Tribunal cannot be sustainable. Therefore, the lower tribunal has rightly set aside the order and restored the interlocutory applications to its original position. Rule 42 (c) of the Rules authorises the learned Agent to government for passing an appropriate order. Therefore, the lower tribunal has rightly set aside the order and restored the interlocutory applications to its original position. Rule 42 (c) of the Rules authorises the learned Agent to government for passing an appropriate order. He further contends that under rule 47 of the Rules appeal lies to the agency Divisional Officer against every order passed by the learned Agency Munsif and the present revision petitions filed under Article 227 of the Constitution of india are not maintainable. ( 5 ) IN view of the rival contentions, the point that arises for consideration is whether the learned Special Assistant agent. Mobile Court, Bhadrachalam, khammam District has committed any error in exercise of his jurisdiction and the impugned order passed is without jurisdiction; whether restoring the interlocutory applications to their original position by setting aside the orders amounts to reviewing the order passed on 31-1-1996. ( 6 ) AS seen from the docket order in O. S. No. 27 of 1995 when the matter is taken up for hearing on 27-1-1996, it was adjourned to 27-2-1996. ( 7 ) IN I. A. No. 70 of 1996 the second respondent specifically averred that when the matter was taken up for hearing, the same was adjourned to 27-2-1996, and no court proceedings were conducted on 31-1-1996. Though the revision petitioner herein filed a counter, the said fact that no proceedings were conducted on 31-1-1996 was not denied by him. Learned Special assistant Agent Mobile Court, bhadrachalam, passed a detailed order in i. A. No. 70 of 1996 on 6-8-1996 elaborating the events which had taken place in the suit and it is also observed that the case was not posted to 31-1-1996 and in fact no Court proceedings were taken place on the said date. He further observed that no notice was also given to the second respondent before vacating the order neither passed in her favour nor advancing the matter from 27-2-1996 to 31-1-1996. In view of the same, he sought to set aside the ex parte order dated 31-1-1996 and to restore the I. A. No. 16 of 1995 in O. S. No. 27 of 1995 and also set aside the order making the stay absolute in I. A. No. 24 of 1994 in O. S. No. 46 of 1996 and both the matters were posted for arguments on 14-8-1996. ( 8 ) NO doubt Rule 18 of the Rules authorises corrections of only clerical or arithmetical mistakes in order or errors arising therein from any accidental slip or omission. Rule 26 of the Rules prescribes for appearance of parties and consequences of non-appearance. Where the suit is dismissed for non-appearance, the plaintiff may (subject to law of limitation) bring a fresh suit or apply for an order to set the dismissal aside and if he satisfies the Court that there was sufficient cause for his non- appearance, the Court shall make an order setting aside the dismissal and shall appoint a day for proceeding with the suit. Admittedly, in the present case, the injunction order was vacated in the absence of the second respondent, who obtained an order in I. A. No. 16 of 1995 in O. S. No. 25 of 1997 on 29-6-1995. When once the Rule 26 (2) of the Rules authorises for setting aside the dismissal orders, the same will authorise the lower Court for setting aside the ex parte order, more so when the said order was passed in utter violation of principles of natural justice and without giving an opportunity to the second respondent and the said order is prejudicial to her interests. Rule 42 (c) of the Rules authorises the learned Agency Munsif to make such interlocutory orders as appears to be just and convenient and may discharge such order at any time. ( 9 ) ADMITTEDLY, learned Special Assistant agent, Mobile Court, Bhadrachalam, khammam District, not only advanced the proceedings from 27-2-1996 to 31-1-1996 without notice, passed an order vacating the injunction granted in favour of the second respondent and made the stay absolute granted in favour of the revision petitioner herein in I. A. No. 24 of 1994 in o. S. No. 46 of 1994. In fact, it is also not denied that the previous learned Special assistant Agent, Mobile Court, bhadrachalam retired on the said date and no Court proceedings were conducted as recorded in the impugned order dated 6-8-1996. ( 10 ) AS per Rule 54 of the Rules, the agent to the State Government may, for sufficient cause, on an application of a party to the suit, decided by any Subordinate court, direct review of its judgments or orders. He may further empower any subordinate Court to review its judgments or orders for sufficient cause. ( 10 ) AS per Rule 54 of the Rules, the agent to the State Government may, for sufficient cause, on an application of a party to the suit, decided by any Subordinate court, direct review of its judgments or orders. He may further empower any subordinate Court to review its judgments or orders for sufficient cause. The only bar envisaged in the Rule is that no review petition shall be admissible under the above rule in any case in which an appeal has been preferred and the review petition shall not be disposed of without notice to the parties concerned. Once the Agent to the state Government confers a review power on the Subordinate Court; and even without any specific order, the Subordinate Court can also exercise such review power where justice so demands. In fact, the order passed by the learned Special Assistant Agent, mobile Court, Bhadrachalam is not in exercise of its review power, but he has only set aside the ex parte order passed behind back of the second respondent and restored the interlocutory applications to its file after giving opportunity to the party affected, which he can do so either under Rule 26 or under Rule 42 (c) of the Rules. Once the agency Munsif has the power to set aside the dismissal order passed and restore the suit, he can also have the same power to restore the interlocutory applications to its file. ( 11 ) IN the present case, if the order dated 31-1-1996 is allowed to stand, it will not only amounts to miscarriage of justice, but also amounts to continuing an illegal order passed by the lower Tribunal. Even if the order passed by the learned Agency Munsif is lacking jurisdiction, it need not be set aside and if it is set aside, the result would be revival of an illegal order. The Apex court in Maharaja Chintamani Saran Nath shahdeo vs. State of Bihar while affirming the judgment of the Patna High Court held that in the event of the order passed by the member of the Board of Revenue is set aside, it would amount to reviving the invalid order for payment of excess compensation. The Apex court in Maharaja Chintamani Saran Nath shahdeo vs. State of Bihar while affirming the judgment of the Patna High Court held that in the event of the order passed by the member of the Board of Revenue is set aside, it would amount to reviving the invalid order for payment of excess compensation. In such case, the High Court has rightly declined to exercise the writ jurisdiction under Article 226 of the constitution of India to quash the order of a Member of the Board of Revenue on the ground of lack of jurisdiction. Apart from the same, in the present case, no substantial injustice or prejudice has been caused to the petitioner even if the order complained involved an excess of jurisdiction. Both the interlocutory applications were restored to its original file and posted for further hearing. In view of the matter, it is not a fit case where this Court can exercise supervisory jurisdiction under Article 227 of the Constitution of India to set aside the impugned orders passed by the learned special Assistant Agent, Mobile Court, bhadrachalam. Khammam District. In setting aside the order passed on 31-1-1996 there was no failure on the part of the learned lower Tribunal to exercise the jurisdiction nor did it act in disregard of principles of natural justice, nor was the procedure adopted by him is not in consonance with the procedure established under law. The supervisory jurisdiction of the High Court under Article 227 of the constitution of India is limited to see that an inferior Court or the Tribunal is functioning within the limits of its authority and not to commit an error apparent on the face of the record, much less any error of law, which results in miscarriage of justice. Both the revisions fail and are liable to be dismissed. ( 12 ) HOWEVER, learned Special Assistant agent, Mobile Court, Bhadrachalam, khammam District is directed to dispose of both the suits, as expeditiously as possible, preferably within a period of six (6) months from to-day; and if it is not possible, he shall dispose of the interlocutory applications within a period of six (6) months from today after giving due notice and opportunity to both the parties. ( 13 ) ACCORDINGLY both the revision petitions are dismissed. No costs.