Andhra HC (Pre-Telangana)
Pelluru Ramachandraiah S/O Venkaiah vs Byna Parandhamaiah S/O Sankaraiah And ... on 3 November, 2004
Equivalent citations: 2005(1)ALD542
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
JUDGMENT L. Narasimha Reddy, J.
1. This appeal is filed against the order, dated 21.07.2004, passed by the Special Tribunal constituted under the A.P. Land Grabbing (Prohibition) Act (District Judge), Nellore (for short 'the Tribunal) in I.A. No. 1212 of 2003 in L.G.O.P. No. 13 of 1998.
2. The appellant filed the L.G.O.P. against the respondents for a relief under the A.P. Land Grabbing (Prohibition) Act, 1982 (for short 'the Act'). The trial of the same commenced. He filed an affidavit in lieu of chief-examination. A Commissioner was appointed to record his cross-examination. The Commissioner submitted a report stating that the appellant is not co-operating, and thereby warrant could not be executed. Taking the same into account, the Tribunal dismissed the O.P., through its order, dated 10.07.2003. The appellant filed I.A. No. 1212 of 2003, under Order IX Rule 9 of C.P.C., to set aside the order, dated 10.07.2003. Through the order under appeal, the Tribunal rejected the I.A.
3. Sri K. Someswara Kumar, learned counsel for the appellant submits that there was communication gap between the Commissioner appointed to record the cross-examination of PW.1, on the one hand, and counsel and parties to the L.G.O.P., on the other. He submits that in case, the Tribunal found that there was any default on the part of PW.1, it ought to have eschewed his chief-examination and afforded an opportunity to lead further evidence. He contends that the appellant is compelled to approach this Court, since no appeal is maintainable under Sub-Section 3 of Section 7-A of the Act against an order passed in I.A.
4. Sri P. Sridhar Reddy, learned counsel for respondents, on the other hand, submits that the C.M.A. is not maintainable. According to him, the O.P. was filed under the provisions of the Act and an appeal is provided to the Special Court under Sub-Section 3 of Section 7-A of the Act. He submits that Section 104 and Order 43 of C.P.C., have no application to such proceedings. He places reliance upon Judgments of this Court in T.TIRUMALA REDDY, SE, APSEB V. APSEB ENGINEERS ASSOCIATION, 1 and G.V.RANGA RAO V. A.P. STATE ELECTRICITY BOARD ENGINEERS ASSOCIATION, 2 2001 (5) ALD 7050 At the outset, the question relating to the maintainability of the C.M.A. needs to be dealt with. The L.G.O.P., was filed invoking the provisions of the Act. The Act prescribes a special procedure for adjudication and disposal of the claims made under it. The provisions of C.P.C., are made applicable for certain limited purposes. Appeals are provided against the orders passed by the Tribunals to the Special Court constituted under Section 7-A of the Act. Sub-Section 3 of Section 7-A reads as under:
"3. An appeal shall lie, from any Judgment or Order not being interlocutory order of the Special Tribunal, to the Special Court on any question of law or of fact. Every appeal under this Sub-Section shall be preferred within a period of sixty days from the date of Judgment or Order of the Special Tribunal;
Provided that the Special Court may entertain an appeal after the expiry of the said period of sixty days, if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the period of sixty days".
5. Learned counsel for the appellant submits that the order under appeal is passed in an I.A., and thereby it has excluded from the purview of Sub-Section 3 of Section 7-A of the Act, being an interlocutory order. In this context, it needs to be observed that what is made not appelable under that provision is 'an interlocutory order' in contradistinction to an order in the main proceedings or a final order. An interlocutory order contemplates the pendency of the proceedings before the Tribunal, and its having been passed as an interim measure, such as, granting or refusing temporary injunction, adding or refusing to add parties etc. An order passed in applications filed under Rules 9 or 13 of Order IX C.P.C., cannot be said to be of such a nature, because the main proceedings would not be pending before the Tribunal when the corresponding applications are filed.
6. It would be beneficial to refer to the Judgment of the Supreme Court in USMANBHAI V. STATE OF GUJARAT, . The expression 'not being interlocutory order' was interpreted therein. It was held:
"The expression 'interlocutory order' has been used in S.19(1) in contradistinction to what is known as final order and denotes an order of purely interim or temporary nature. The essential test to distinguish one from the other has been discussed and formulated in several decisions of the Judicial Committee of the Privy Council, Federal Court and this Court. One of the tests generally accepted by the English Courts and the Federal Court is to see if the order is decided in one way, it may terminate the proceedings but if decided in another way, then the proceedings would continue. In V.C. Shukla v. State through C.B.I. , Fazal Ali, J. in delivering the majority judgment reviewed the entire case law on the subject and deduced therefrom the following two principles, namely, (i) that a final order has to be interpreted in contra-distinction to an interlocutory order; and (ii) that the test for determining the finality of an order is whether the judgment or order finally disposed of the rights of the parties. It was observed that these principles apply to civil as well as to criminal cases. In criminal proceedings, the word 'judgment' is intended to indicate the final order in a trial terminating in the conviction or acquittal of the accused."
7. Therefore, the order under appeal, which is passed in an application filed under Order IX Rule 9 C.P.C., cannot be treated as interlocutory for the purpose of Sub-Section 3 of Section 7-A of the Act. Hence, an appeal under that provision can be filed in the Special Court.
8. Further, in T.TIRUMALA REDDY's case and G.V. RANGA RAO's case (1 and 2 supra), this Court took the view that where the proceedings are initiated under a special enactment, the mechanism or hierarchy of appeals provided for under C.P.C. does not apply to them.
9. For the foregoing reasons, the C.M.A. is dismissed leaving it open to the appellant to avail the remedy under Sub-Section 3 of Section 7-A of the Act. So far as limitation is concerned, the appellant can avail the benefit under Section 14 of the Limitation Act as well as the proviso to Sub-Section 3 of Section 7-A of the Act. There shall be no order as costs.