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2013 DIGILAW 1111 (AP)

Thoomu Kotamma v. Prabhala Kanaka Rajeswari

2013-12-04

KALYAN JYOTI SENGUPTA, P.V.SANJAY KUMAR

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ORDER Kalyan Jyoti Sengupta, C.J. 1. This appeal has been filed against the judgment and order, dated 27-01-2004, passed by the learned Trial Judge in Rev. WPMP No. 16484 of 2003 in W.P. No. 12576 of 1999. Bereft of all details, the impugned order appears to have been culmination of the review application. The respondents before us filed the writ petition seeking appropriate reliefs. The writ petition was dismissed by the learned Trial Judge by passing orders on 28-04-2003. The writ petitioners thereafter filed the review application and the learned Trial Judge has allowed the same having found that there is error apparent on the face of the record. But, after allowing the review application, the learned Trial Judge did not decide the writ petition on merits. 2. The learned counsel for the appellants submits that this composite order passed on the review application is patently illegal, as it is not in conformity with the provisions of Rule 8 of Order XLVII of the Code of Civil Procedure, 1908 (for short, "CPC") read with writ rules of this Court. 3. From the impugned order, we find that the learned Trial Judge, after setting aside the order of dismissal of the writ petition, allowed the writ petition instantly. 4. The learned counsel for the respondents/writ petitioners submits that it is not illegal to pass a composite order on a review application, namely; while allowing the review prayer and at the same time granting relief on merit of the writ petition in one combined judgment. In support of his submission, he has placed reliance on a Division Bench judgment of this Court in Mallikarjunappa Kalyanshetti v. Rudrasetti Sangasetti Patil Mahagamkar and another (1) AIR 1959 A.P. 305 : 1958 ALT 822 and he has drawn our attention to paragraph 4 of the said judgment, which is set out hereunder: The learned advocate for the appellant then contended that the appeal may be treated as revision. In para 6 of the grounds of appeal the appellant states that he reserves to himself the objections on the merits of the order. The merits cannot, therefore, be gone into. The only point that could be pressed and was pressed related to the irregularity in passing the order appealed against in a composite form. This cannot be said to be an illegality or material irregularity in the exercise of jurisdiction. The merits cannot, therefore, be gone into. The only point that could be pressed and was pressed related to the irregularity in passing the order appealed against in a composite form. This cannot be said to be an illegality or material irregularity in the exercise of jurisdiction. We, therefore, find no scope for treating the appeal as a revision. 5. We find that the head-note of the judgment is absolutely misleading and the learned Division Bench has not decided the point as urged here; Therefore, this judgment has no manner of application. 6. In the context of the aforesaid submission and the counter submission, we examine the provisions of Order XLVII Rule 8 of CPC, which is set out hereunder: 8. Registry of application granted, and order for re-hearing - When an application for review is granted, a note thereof shall be made in the register and the Court may at once re-hear the case or make such order in regard to the re-hearing as it thinks fit. 7. On a reading of the aforesaid provision, it appears that while dealing with the review application the Court has to pass through two stages - first stage is to allow the review application by recalling the order, which is sought to be reviewed and restore the matter on file and to incorporate the same in the register. After doing that, the Court has to re-hear the matter on merits, after giving the parties opportunity of hearing and this can be done instantly by the same judgment and order on the same day or it can be deferred to some other date. The basic object is to give re-hearing to both the parties on the merit of the proceedings, which have been restored on file. 8. From the impugned judgment and order, we do not find any indication that the aforesaid course of action has been taken by the learned Trial Judge after setting aside the order sought to be reviewed. The learned Trial Judge without considering and deciding the merits and demerits of the case, has granted the relief prayed for in the writ petition automatically. Therefore, this is a legally flawed judgment and order. The learned Trial Judge without considering and deciding the merits and demerits of the case, has granted the relief prayed for in the writ petition automatically. Therefore, this is a legally flawed judgment and order. Accordingly, we modify the judgment and order of the learned Trial Judge by passing the following order: The writ petition is restored on file and it should be re-heard after completion of filing of affidavits by the parties, if not done already. If they are already filed, then the matter can be heard out by the learned Trial Judge on the basis of the pleadings filed by the parties. Since it is considerably an old matter, we request the learned Trial Judge to decide the matter on merits in accordance with law within a period of one month from the date of production of our order. 9. Accordingly, the writ appeal is disposed of. No costs. 10. Miscellaneous petitions, if any, pending in this petition shall stand closed. 11. It is submitted by the learned counsel for the respondents/writ petitioners that the 1st respondent, namely; Prabhala Kanaka Rajeswari died leaving behind her last Will and testament, whereby she has given away her right, title and interest in the property in dispute in favour of one Prabala Suryanarayana as sole legatee. However, no such legal representative application has been filed before us. In any view of the matter, this appeal cannot abate so far as the 1st respondent - Prabhala Kanaka Rajeswari is concerned, as the 2nd respondent Prabhala Hymavathi is her own sister, who could have been her sole heiress and legal representative, had there been case of death intestacy. We direct the registry to record the death of the 1st respondent - Prabhala Kanaka Rajeswari in the cause title. However, we give liberty to the 2nd respondent - Prabhala Hymavathi, for that matter the alleged legatee, to take steps in accordance with law before the learned Trial Judge.