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2011 DIGILAW 440 (AP)

Alla @ Pentakota Satyanarayana v. Pentakota Krishna Bhagavan

2011-06-16

NISAR AHMAD, VILAS V.AFZULPURKAR

body2011
Judgment :- Nisar Ahmad Kakru, J. Through the motion on hand, the Additional District Judge, East Godavari at Kakinada, Andhra Pradesh (ADJ) is sought to be divested of his jurisdiction by withdrawal of Original Suit No. 54 of 2010 from his board on the strength of Article 228 of the Constitution of India extracted hereunder: “Transfer of certain cases to High Court – If the High Court is satisfied that a case pending in a court subordinate to it involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the case, it shall withdraw the case and may – (a) either dispose of the case itself, or (b) determine the said question of law and return the case to the court from which the case has been so withdrawn together with a copy of its judgment on such question, and the said court shall on receipt thereof proceed to dispose of the case in conformity with such judgment.” 2. Relying on the aforementioned extraction from the Constitution, it is contended that withdrawal of the suit from the Court of ADJ has become imperative because suit has given rise to substantial questions of law as to the interpretation of the Constitution having direct bearing on the disposal of the suit. The questions have been formulated by the learned counsel for the petitioners in the application itself which may be noticed: (a) Whether the District Court can sit in judgment over the Supreme Court judgment in view of Art. 141 of the Constitution of India? (b) Whether the parties to the appeal before the Supreme Court can reagitate the same point which was decided by the Supreme Court? (c) Whether it is imperative on the part of the Supreme Court to give reasons for all its conclusions? (d) Whether the findings in the EP. No. 78/2006 and CRP No. 6426 of 2006 operates as rejudicata? (e) Whether the judgment of the Supreme Court in Civil Appeals Nos. 5941 and 5942 of 2005 are binding on the parties? (f) Whether the Subordinate Courts can give a finding contrary to the Supreme Court decree in Civil Appeal Nos. 5941 and 5942 of 2005?” 3. No. 78/2006 and CRP No. 6426 of 2006 operates as rejudicata? (e) Whether the judgment of the Supreme Court in Civil Appeals Nos. 5941 and 5942 of 2005 are binding on the parties? (f) Whether the Subordinate Courts can give a finding contrary to the Supreme Court decree in Civil Appeal Nos. 5941 and 5942 of 2005?” 3. Before addressing ourselves to the above said questions, we cannot resist a presumption that the learned counsel for the petitioners is fully alive to the provisions of the Civil Procedure Code (‘CPC’ for short’) including Order XXVIIA CPC which reads thus: “Suits involving a substantial question of law as to the interpretation of the Constitution or as to the validity of any statutory instrument” Order XXVIIA Rule 1 CPC reads as follows: “Notice to the Attorney General or the Advocate General:- In any suit in which it appears to the Court that any such question as is referred to in cause (1) of Article 132 read with Article 147 of the Constitution, is involved, the Court shall not proceed to determine that question until after notice has been given to the Attorney General for India, if the question of law concerns the Central Government and to the Advocate-General of the State if the question of law concerns a State Government.” 4. A plain reading of the above provision reveals that the civil Court is not powerless to determine such questions of law arising before it in a suit. The above said rule prescribes the mode to be followed when a question of law as to the interpretation of the Constitution is raised which requires the Court to give notice to the Attorney General for India if the question of law concerns the Central Government and to the Advocate General of the State if the question of law concerns the State Government. Power to determine the questions although available to the civil Court, yet petitioner chose to travel hundreds of miles to reach this Court to raise the questions. No doubt the petitioners have, out of their own free will opted for an expensive remedy but what justification they have to subject the opposite party to an avoidable expenditure and inconvenience? Answer on their part is wanting. In the aforementioned backdrop, we are of the considered opinion that the application aims at something more that meets the eye. No doubt the petitioners have, out of their own free will opted for an expensive remedy but what justification they have to subject the opposite party to an avoidable expenditure and inconvenience? Answer on their part is wanting. In the aforementioned backdrop, we are of the considered opinion that the application aims at something more that meets the eye. Thus appropriate course is to relegate the petitioners to the jurisdiction of the civil Court that is seized of the lis. More so, we are satisfied that exercise of power under Article 228 of the Constitution is otherwise unwarranted in this case. 5. Regard being had to the nature of questions framed by the learned counsel extracted as above, we do not think that any of these questions amount to substantial questions of law involving interpretation of the Constitution as the said questions can be answered without even examining the record, coupled with the fact that our answers mentioned below would not in any way prejudice the rights of the other side. We find no legal impediment to determine the questions raised, accordingly, we take upon ourselves to answer them. 6. Reverting to the questions, it has to be borne in mind that law is no more res integra that decisions of the Supreme Court are binding on all Courts and all Courts are bound to follow the decision of the Supreme Court as is mandated by the Constitution itself, obviously a matter decided by the Supreme Court cannot be re-agitated before any other Court. It also goes without saying that the judgment of the Supreme Court in any matter is binding on the parties to the lis and no finding can be returned by any Court contrary to the one given by the Supreme Court and no Court can assume power unto itself to examine the legality or otherwise of the judgment of the Supreme Court. Viewed thus, questions (a), (b), (c) and (f) are answered in the negative and question (e) is answered in the affirmative. Question (d) being a mixed question of fact and law and certainly not a substantial question of law as to the interpretation of the Constitution, has to go unanswered to be appreciated by the civil Court at the appropriate stage and in accordance with the procedure established by law, of course if raised before it. Question (d) being a mixed question of fact and law and certainly not a substantial question of law as to the interpretation of the Constitution, has to go unanswered to be appreciated by the civil Court at the appropriate stage and in accordance with the procedure established by law, of course if raised before it. 7.Viewed thus, prayer to transfer the case from the civil Court to this Court is declined.Dismissed.