Andhra HC (Pre-Telangana)
G. Padma vs Dr. Bavineni Vijaya Lakshmi And Others on 21 July, 1994
Equivalent citations: AIR1995AP63, 1994(3)ALT318, AIR 1995 ANDHRA PRADESH 63, (1994) 2 LS 159, (1994) 2 APLJ 278, (1994) 3 ANDH LT 318
ORDER S. Nainar Sundaram, C.J.
1. Writ Petn. No. 10107 of 1993 was disposed of on 18-2-1994 by a Division Bench of this Court consisting of V. Sivaraman Nair and S. V. Maruthi, JJ. V. Sivaraman Nair, J. demitted office subsequent to the delivery of the verdict. Obviously enabled by the provisions of Order XLVII, Rule 5 of the Code of Civil Procedure (hereinafter referred to as 'the Code') the first respondent in the writ petition preferred Review W.P.M.P. No. 7269 of 1994. Since V. Sivaraman Nair, J. was not available to deal with the review petition along with S.V. Maruthi, J., the review petition was posted before S. V. Maruthi, J. and the learned Judge after having admitted the review petition, heard and disposed it of on 28-4-1994. The appellant in this writ appeal, though not a party to the writ petition and the review petition, has got a grievance over the decision of S.V. Maruthi, J. in the review petition. Thus, the appellant has preferred this writ appeal. A doubt was felt with regard to the maintainability of the writ appeal and the writ appeal was entertained subject to the scrutiny of the question concerning its maintainability. Accordingly, we are obliged to consider the question-of the maintainability of this writ appeal first before we could go anywhere near the merits therein.
2. As we have already noted, the verdict in the writ petition was one delivered by a Bench of this Court consisting of V. Sivaraman Nair and S.V. Maruthi, JJ. Since V. Sivaraman Nair, J. could not be available to hear and deal with the review petition along with S.V. Maruthi, J. the review petition was dealt with only by S.V. Maruthi J. Order XLVII, Rule 5 of the Code, which enables this, reads as follows:--
Where the Judge or Judges, or any one of the Judges, who passed the decree or made the order, a review of which is applied for, continues or continue attached to the Court at the time when the application for a review is presented, and is not or are not precluded by absence or other cause for a period of six months next after the application from considering the decree or order to which the application refers, such Judge or Judges or any of them shall hear the application, and no other Judge or Judges of the Court shall hear the same."
3. The implications of the rule are patent and unambiguous. If the Judge or Judges or any one of the Judges, who made the original verdict, a review of which is sought for, continues or continue to be attached to the Court, when the review petition is being dealt with and is not precluded by the factors contemplated in the rule from considering it, then the review petition shall be dealt with by such Judge, or Judges or any one of them alone and no other Judge or Judges shall deal with it. If the original verdict was made by two Judges, and if one of them does not continue to be attached to the Court, the other Judge who continues to be attached to the Court alone shall deal with the review petition. It cannot be dealt with by any other Judge or Judges or by the same Judge sitting along with any other Judge who was not a party to the original verdict.
4. An indisputable feature which is legal in character cannot also be lost sight of. The decision in the view petition though rendered by one of the two Judges who continues to be attached to the Court, would still be the decision of the Bench only. The only reason why the review petition got posted and dealt with by S.V. Maruthi, J. was the nonavailability of the other learned Judge, V. Sivaraman Nair, J., who was a party to the Bench consisting of the two learned Judges who delivered the original verdict. The concept of review is whatever decision the Court renders in the review petition has a direct impact on the original verdict. If there is a refusal to review, the original verdict stands confirmed and is left undisturbed by the Court. If review is allowed, the reviewed verdict gets substituted in the place of the original verdict. When the original verdict is that of a Bench consisting of two Judges, merely because the review has been dealt with by one of the two Judges on account of the non-availability of the other Judge as enabled by Order XLVII, Rule 5 of the Code, the decision rendered on review will not cease to be the decision of the Bench as such. The rule is one of exigency and it cannot alter the character of the decision in the review petition as being only that of the Bench, though rendered by one of the two Judges, available. The review is only by the Bench, which delivered the original verdict, though the exercise is being done by one of the two judges available. We do not think we could be more expatiate than what we have expressed as above. This implication is patent to our mind.
5. However, the endeavour of Mr. T. Lakshminarayana, learned counsel for the appellant, is to mainatin that as per the terms of clause 15 of the Letters Patent, the decision in the review petition being only that of a single Judge, is amenable for being canvassed in Letters Patent Appeal. The learned counsel for the appellant has not obviously taken note of the original implications of one Judge of a Bench constituted by two Judges reviewing the verdict of the Bench. As we have already expressed, the decision in the review though done by the available learned single Judge in the peculiar circumstances of the case, namely, the non-availability of the other Judge is still the decision of the Bench and the Bench alone. If so, the writ appeal is not maintainable.
6. We find that this question is no longer res integra and in fact there is a pronouncement of a Bench of this Court in Achyutham v. Annapuranamma , wherein it has been categorically opined that when a judgment of the Division Bench is dealt with by one of the two Judges on the ground that the other Judge was not available, an appeal under clause 15 of the Letters Patent is not maintainable. While doing so, the learned Judges of the Bench of this Court referred to and relied on the pronouncement of a Bench of the High Court of Calcutta in Kailash Chandra v. Revati Mohan AIR 1917 Cal 88. In the case dealt with by the Bench of the High Court of Calcutta the original verdict, was delivered by a Bench consisting of two learned Judges of that High Court. However, the review petition was heard by one of the two learned Judges. "When an appeal was sought to be preferred under Clause 15 of the Letters Patent, it was held by the Bench of the High Court of Calcutta that no such appeal would lie. The learned Judges of the Bench in Achyutham v. Annapur-namma (supra) have extracted the relevant passage of Woodroffe, J. delivering the judgment on behalf of the Bench in Kailash Chandara v. Revati Mohan (supra). Being a coordinate Bench we are bound by the pronouncement in Achyutham v. Annap'ur-namma (supra). Therefore, we have to hoid that this writ appeal is not maintainable.
7. We must record that there was a strain on the part of the learned counsel for the appellant to show that clause 15 of the Letters. Patent overrides the Code. This submission is of no avail at all for deciding the question of maintainability of a writ appeal as against the decision in a petition for review dealt with by one Judge who was a party to a Bench of two Judges, who delivered the original verdict, on the ground that the other Judge was not available for dealing with the review petition. Accordingly, this writ appeal is dismissed as not maintainable. We make no order as to costs.
8. Appeal dismissed.