Andhra HC (Pre-Telangana)
V. Ramakrishna vs Smt. N. Sarojini And Others on 21 April, 1992
Equivalent citations: AIR1993AP147, 1992(2)ALT35
ORDER B. Subhashan Reddy, J.
1. This writ appeal is directed against the order dated 10-9-1991 passed by the learned single Judge in Writ Petition No. 9951/90 wherein the writ appellant who was the 4th respondent in the writ petition was directed to deposit Rs. 2,000/- per month with effect from 1-8- 1990, arrears payable by the end of the year 1991, and the current amounts by 15th day of succeeding month. The writ petition was filed by the 1st respondent herein seeking renewal of licence enabling her to continue to run the stall on railway platform No. 5 at Vijayawada Railway Station. We shall refer to the parties as they are arrayed in this writ appeal.
2. One Mr. V. Srinivas Rao was running a stall at Platform No. 5 of Vijayawada Railway Station since 1965 till his death on 14-3-1981. His wife pre-deceased him. He left behind him, 5 daughters and a son and of the said children, three daughters were majors and two daughters, namely, Vijayalakshmi and Varalakshmi and the last one, a son by name Prasad, were minors. The eldest daughter Sarojini has filed the writ petition seeking the issuance of a writ of mandamus for renewing the licence in her name, and it is a fact that on her application for transfer of licence consequent on the death of her father, the said transfer was in fact made by the railway authorities in the year 1981 soon after the death of V. Srinivas Rao.
3. The grant of licences including renewals thereof is guided by the executive instructions issued by the Railway Board from time to time. The guidelines dated 1-8- 1978 contained under Railway Board's proceedings Nos. 78-TG 1II/670/A1 and 7/OTC/3/670/A, dated 28-7-1978 and 11-7- 1979 respectively were relied upon for the said transfer of licence. The said circulars contemplated the transfer of licence to the legal representatives of the licencees in the event of death and it is on humane consideration and with an avowed object of affording an opportunity and providing livelihood to the dependants of the deceased contractor to work, earn and live. These guidelines held the field when V. Srinivas Rao died and as such, on the application of the 1 st respondent for the issuance of licence in the name of herself and her minor brother, V. Prasad, the railway authorities had granted the same and by the said act of transfer of licence, the said two persons, became the licencees and it was not subject to re-opening on the basis of any other plea. Even after the expiry of unexpired period of licence held by V. Srinivas Rao in the year 1981, for which the licence was transferred in the name of the 1st respondent and her minor brother, the renewal was granted independently for a period of 3 years and again after the expiry of the said period of 3 years, it was renewed to be in force till 31-3-1988. But, an unfortunate event had occurred on the death of the 1st respondent's minor brother, Prasad, in June, 1985. Manipulations were made to incorporate the name of the appellant in place of the said deceased Prasad along with the name of the 1st respondent and for this substitution of name of.the appellant, there are no valid proceedings and per se, it was illegal. It is stated that for the purpose of said substitution, a letter was produced by tbe appellant and his father purporting to have been signed and issued by the 1st respondent consenting for such a substitution and on coming to know about the same, the 1st respondent has launched prosecution and the criminal proceedings are pending adjudication in C. C. No. 104/88 on the file of 10th Metropolitan Magistrate, Hyderabad.
4. After the expiry of 31-3-1988, the licence was to be renewed in favour of the 1 st respondent. But, it could not be allowed to happen because of interruptions and claims made by the appellant projecting himself as an adopted son of late V. Srinivas Rao. The appellant had even filed Writ Petition No. 1865/89 seeking the issuance of a writ for renewal of the licence in his name, even mentioning in the said writ petition that the said writ petition was being filed with the consent and authority of the 1st respondent. In the interlocutory application, he had obtained an interim order for the renewal of licence and on the strength of the interim order, he had obtained the renewal of the licence from the railway authorities and strange enough, in his name alone to the exclusion of all natural heirs of V. Srinivas Rao. After the 1st respondent came to know about the same, she expressed her dismay at these happenings and she initiated legal proceedings by filing Writ Petition No. 9951/90. When W. P. No. 1865/89 was ordered to be posted along with W. P. No. 9951/90, the appellant has coolly withdrawn the said Writ Petition No. 1865/89 filed by him to avoid the adjudication of the cause and dispute involved and the said writ petition was accordingly dismissed as withdrawn. It is pertinent to mention here that when any order is obtained in interlocutory proceedings pending adjudication of final proceedings, it has to be borne in mind that such in rer-locutory orders are only as a step-in-aid to the final adjudication and no litigant is permitted to take undue advantage of the interim order without facing the final adjudication. Here, the appellant thought that his purpose was served after obtaining the interim order pursuant to which the licence was renewed and that as such, he need not face the final adjudication. The railway authorities were also made to understand in such a fashion. But the legal position is otherwise. When a party obtains an interim order and he does not choose final adjudication and voluntarily withdraws his cause and the final proceedings is dismissed as withdrawn, the interim'order automatically stands vacated and any benefit accrued pursuant to the interim order also disappears. The benefit of interim order in W.P. No. 1865/89 disappeared with the withdrawal of the said writ petition by the appellant and consequently, the renewal in appellant's favour is non est under law. From the sequence of events, it is manifest that the appellant and his father had evolved intelligent strategy to bag the licence in the name of the appellant, firstly, by getting incorporation of his name after the death of Prasad and then by getting the renewal in his name alone on the ground that he was the adopted son of late. V. Srinivas Rao and that the married daughter whose husband is working would not be entitled for the grant of licence as a legal representative according to the later circular dated 27-6-1982, issued by the railway authorities. It is not that the railway authorities plead and project the said circular, but it is the appellant who projects the same with an evil design of depriving the 1st respondent of getting the renewal of licence. But the said circular has got only prospective operation and not retrospective in nature and that is rightly so held by the learned single Judge. The railway authorities represented by their counsel, Sri C. Ramakrishna, also do not dispute the said proposition and legal position. Further, the question of application of the circular at this juncture do not arise at all as much before the issuance of the circular, the 1st respondent was already recognised as legal representative and the licence was issued in her name along with her brother way back in the year 1981 and then after the unexpired period of licence held by V. Srinivas Rao, the licence was independently renewed in the name of the 1st respondent and her minor brother, Prasad, as such, the question of further subjecting them to any other circular issued later did not and cannot arise.
5. Now coming to the aspect of adoption set up by the appellant, some curious facts can be noted. There was no frustration for late Srinivas Rao not begetting any children. He had enough of them. As already stated above, he left behind him, 5 daughters and a son. But the appellant pleads that he was adopted by late V. Srinivas Rao after the birth of 5 daughters, namely, Sarojini, the 1st respondent herein, Nagamani, Ramani, Vijaya-lakshmi and Varalakshmi, in spite of the fact that there was further scope for begetting children. What is more, a son also was born to V. Srinivas Rao, namely, Prasad. Late Srinivas Rao died on 14-3-1981 and there was no elderly member, particularly, male member who could guide the young and gullible children left behind by him excepting his brother V. Sathyanarayana. But, instead of protecting the rights of the nieces and nephew, he was bent upon knocking away their rights and as a consequence of the same in the very next month of death of his brother, he had ventured to get filed O.S. No. 808/81 in the name of his own son in the Court of the District Munsiff, Vijayawada seeking a decree of declaration that his son, the appel-lant herein, was adopted on 31-3-1972 by late Srinivas Rao. From the particulars given in the decree, it is manifest that the appellant was aged 19 years while the 1st respondent was aged 24 years and her sisters and the brother were aged 22 years, 20 years, 16 years; 12 years and 8 years respectively. Admittedly, her sister Vijayalakshmi, Varalakshmi and the brother Prasad were minors. The suit was. instituted on 24-4-1981 and soon after the intervening holidays on account of summer, vacation, on 16-6-1981, the defendants were set ex parte. The appellant who had filed the suit has chosen his own father as guardian of the three minor-defendants 4 to 6 mentioned above and neither notices are taken out to the guardian nor does he enter appearance. This is so apparent from the decree that I.A. No. 2500/81 seeking Mr. V. Sathyanarayana to be appointed as guardian for minor defendants 4 to 6 was allowed on 16-6-1981 itself on which date the ex parte decree was passed. It is ununderstandable as to how an ex parte decree could be passed on the very same date even without serving summons enabling the minor-defendants 4 to 6 to make appearance. We are not posted with any material with regard to the service of summons on defendants 1 to 3, but admittedly, it is a case where minor-defendants 4 to 6 were not served and there cannot be any difficulty for such an assumption as the guardianship application itself was allowed on 16-6-1981 and the decree was also passed on 16-6-1981, while simultaneously setting all the defendants ex parte. This kind of haste by no less than a judicial authority invested with important functions of adjudicating on the valuable civil rights of the parties should be deprecated. The interested parties may be in a hurry to obtain the order of their liking, but the judicial authority should refrain from subscribing anything in that regard. After all, the procedure is regulated by the Civil Procedure Code apart from the guidance in the nature of the civil rules of practice implying fairplay and this has got to be followed and cannot be visited in breach. Of course, these aspects will be considered by the concerned court while enquiring CMA arising out of rejection of O.9, R. 13, C.P.C. application as also the court in which a suit is said to have been filed for cancellation of the decree of adoption dated 16-6-1981. The said proceedings will, however, be adjudicated on theirown merits and suffice it to say that these proceedings relate only to the renewal of licence of the stall of the platform mentioned supra.
6. When Mr. Sathyanarayana Prasad, the teamed counsel for the appellant argued the matter on 20th December, 1991, his contention was that the appellant was adopted by late V. Srinivas Rao after the birth of Prasad and naturally, our instant reaction, rightly so, was that such an adoption was per se void in view of the prohibition contained under S. 11 of Hindu Adoptions and Maintenance Act, 1956 and after the closure of arguments, the matter was posted for judgment Meanwhile, a letter dated 21-12-1991, was' circulated seeking the posting of the matter for being mentioned enclosing the copies of some private settlement as also copy of the decree dated 16-6-1981 in O.S. No. 808/81 on the file of the District Munsiff, Vijayawada. In the letter so addressed, it is stated that during the course of arguments, by mistake, it was stated that adoption of the appellant was after the birth of the natural son of the adoptive father and then, now obtained instructions and that the adoption was on 31-3-1972 and after one year of the same the natural son was bom to the adoptive father and as such, the adoption was not hit by the provisions of the Act referred to above. The matter was again heard on 23-12-1991, when it was posted before us and Mr. S. Sathyanarayana Prasad had strenuously contended that the factum of adoption and the private settlement was not in dispute. But the learned counsel appearing for the 1st respondent had controverted the same and submitted that there are no such admissions as they are not admitting and that in fact, proceedings are pending before the court below, one by way of civil miscellaneous appeal against the rejection of the petition filed under O. IX, R: 13 of C.P.C. and another a suit in O.S. No. 983/89 for cancellation of the ex parte decree of adoption passed on 16-6-1981 and that in I. A. No. 1181 / 90, interim injunction was also granted on 25-10-1990 restraining the appellant from projecting him as the adopted son of late V. Srinivas Rao persuant to the ex parte decree of adoption dated 16-6-1981. Further a criminal complaint was filed in 1988 and it could be easily guessed that there was strained relationship between the parlies and we cannot countenance an argument that there was some mutual agreement and settlement between the parties and in any event they cannot be subject matter of adjudication in these proceedings arising out of Art. 226 of the Constitution of India.
7. The learned single Judge held that renewal of licence in the name of the appellant alone was illegal and it ought to have been in the name of the 1st respondent also and the purport of the judgment is to the effect that the 1st respondent and her sisters should be benefited of the contract regarding stall on the railway platform concerned and that the appellant should work in execution of the said contract leaving the disputed matter of adoption to be settled by the Civil Courts. But the premise on which the learned single Judge allowed the appellant to execute the contract was the assumption that the licence was subsisting in his name. But, in view of the fact that the licence was issued pursuant to an interim order pending W.P. No. 1865/89 and inasmuch as the appellant had voluntarily withdrawn the said writ petition, the interim orders stood vacated and the licence disappeared and became non est under law. We had already discussed this matter above in detail about the legal consequences of withdrawing a main proceeding. Further, the renewed licence of the appellant also expired on 11-12-1990. We have heard the matter at length both on 20-12-1991 as also on 23-12-1991 and we are not convinced that any point is made out to accept the contentions raised by the appellant. But the question now remains is as to who has to operate the stall on the railway platform concerned. The appellant cannot operate the same in view of the fact that no licence subsists in his favour. Further, Mr. S. Sathyanarayana Prasad, the learned counsel for the appellant has complained to us that it was highly unreasonable for the learned single Judge to make the appellant work for the 1 st respondent and her sisters and direct him to deposit Rs. 2,000/-per month. In the normal course, the 1st respondent is the only person in whose favour the licence had to be renewed inasmuch as the co-lincencee, namely, her brother had died during the month of June, 1985 and the substitution of the name of the appellant in his place is per se illegal. There is absolutely no embargo for the renewal of the licence in her name after the expiry of 31-3-1988 for such further period as the rules allow and admittedly, the said period at a stretch would be 3 years. But, unfortunately, the said period of three years is spent in litigation and again it has to be renewed for a like period. Having regard to the object of the entitlement of the legal representatives of the deceased contractor for transfer of licence, it is but natural that natural heirs would be preferred and they were preferred and licence was granted in the instant case in favour of the 1st respondent and there is no reason or justification for not renewing for further periods.
8. But, for granting such a relief, there is yet another aspect to be considered. The 1st respondent did not file any appeal against the order passed by the learned single Judge, so far as the licence was concerned even though the entire order, in effect, is in her favour. If we do not grant any direction for the renewal for the licence in favour of the 1st respondent as sought for by her in writ petition, it will lead to anomalies as the benefit of the licence which was held by the 1st respondent's father for a period of 16 years and then continued in her name for a further period of 7 years will be lost. We feel that the learned single Judge, having held that the disputed adoption can be resolved by the civil court and pending that the 1st respondent shall be entitled for amounts, ought to have granted the relief of renewal of licence in her favour as sought for by her.
9. Having regard to the peculiarfacts and circumstances of this case, and in order to do complete justice, we exercise our appellate powers conferred under O.41, R. 33 of C.P.C. and the situation of the case does warrant for invocation of the said powers. The object of O.41, Rule 33 of C.P.C. is clearly to enable the court to do complete justice between the parties. Its terms are very wide and in a proper case, it gives the appellate court ample discretion to pass any decree or make any order to prevent the ends of justice being defeated. The language employed in the rule which has been brought forth by an amendment in the year 1908 is explicit of the same. Having regard to the wide language of the rule, it is not expedient to lay down any hard and fast rule regarding its true scope involving as it does an exercise of judicial discretion. The question whether court should exercise the powers in a particular case would no doubt depend upon the special facts and circumstances of the case. May be, that the said power cannot be exercised arbitrarily or to abrogate the other provisions of the'Code. Further, the powers of the appellate court are also not limited, only if there is an interference with the decree or order under appeal. In fact, the Full Bench of the Madras High Court in Subramanian v. Sinnammal, AIR 1930 Mad 801 (FB) has held that Order41, Rule 33 of C.P.C. confers wide powers upon the appellate court and there is no warrant for limiting the application of the said rule only to cases where interference in the decree was caused and further interference was required to adjust rights between the parties. It was also held in K. C. Venkata Reddy v. K. Ganohi, 1976 (2) APLJ 237 (DB) by a Division Bench of this court that the object of Order 41, Rule 33 of C.P.C. is to empower the appellate court to do complete justice between the parties and that the said rule confers a very wide power on the appellate court, if the court from which the appeal is filed has not made a decree which ought to have been made by it. Held the Bench further, that not only the appellate court can pass that decree, it also may make such further or other decree which the justice of the case may require and this power, the appellate court may exercise even in cases where the appeal does not cover the entire subject matter of the suit, but is preferred only as to part of the decree and that it may also be exercised in favour of all or any of the respondents, although such respondents may not have filed any appeal or cross objections, in fact, the earliest judgment which can be traced is Ravaneswar v. Chandi, AIR 1915 PC 57 (FB) wherein such power contained under Order 41, Rule 33 of C.P.C. was exercised. Later when there was some contraversy in the decisions rendered interpreting the said provision, the same was resolved by a Full Bench of the Madras High Court in Subramnanian v. Sinnammal, AIR 1930 Mad 801 (FB) referred supra. The Supreme Court has further held in Ramchand v. Janki Ballabhji, that the power under Order 41, Rule 33 of C.P.C. can be invoked for the first time even by the Supreme Court and in the said case, the Supreme Court while dismissing the defendants' appeal issued certain directions in exercise of the powers contained under Order 41, Rule 33 of C.P.C.
10. We need not multiply the decisions and suffice it to say that there are plethora of precedents supporting the exercise of the power akin to one in the instant case under Order41, Rule33 of the C.P.C, The power to invoke Order 41, Rule 33 C.P.C. by the appellate court sitting under Letters patent also cannot be doubted and it is settled law that such power can be exercised not only by the appellate court hearing the appeal under the provisions of the Civil Procedure Code, but also by the appellate court under Letters patent.
11. The following are some of the Judicial precedents which support our view :
(1) P. Narasimham v. P. V. Narasimham, (DB).
(2) Mahmad Ali v. Akram Ali, AIR 1976 Gaul 63 (DB).
(3) Sein Das v. Lakhajee, AIR 1941 Rangoon 63 (DB).
(4) Biva Banerjee v. Manmatha Nath, AIR 1977 Cal 83 (DB).
What is more, the Supreme Court itself stated in the decision cited supra that even for the first time, Supreme Court in an appeal filed under the provisions of the Constitution can also invoke such power.
12. For the foregoing reasons, we reject this writ appeal and direct the railway. authorities to renew the contract forthwith in favour of the 1st respondent pertaining to miscellaneous stall at platform No. 5 of Vijayawada Railway station.
13. This Writ appeal is disposed of accordingly. There shall be no order as to costs.
14. 21st day of April, 1992. After the judgment was rendered, the counsel for the appellant has issued a letter to the Registry stating "In the body of the judgment, there are some factual mistakes which needs to be mentioned to the learned Judges" and as such, sought to post the same before us for being mentioned. Outright, the same had to be rejected as the alleged mistakes have not been specified and the letter is very vague. But, during arguments. Mr. S. Satyanarayana Prasad, requested us to look into the matter making some pointed references orally even though not stated in writing in the letter mentioned supra. According to the learned counsel, the mistakes are as mentioned infra :
(1) No prosecution is pending against the Appellant and C.C. No. 104/88 on the file of the 10th Metropolitan Magistrate, Secun-derabad pertains to some other accused K. Suresh, and that it no way concerns the appellant; (2) The licences of the appellant to run the stall was not issued pursuant to any orders;
(3) W.P. No, 1865/89 was not withdrawn to avoid adjudication;
(4) The appellant's father was in no way concerned and is not at all in picture;
(5) There were no children to late V. Srinivas Rao at the time of adoption of the appellant;
(6) Observations in paras 8, 9 and 10 of the judgment are not necessary;
(7) there was a settlement between the parties with regard to licence and the last line of the same shows the same ex facie; (8) Observations at page 14 of the judgment lower down are not correct;
(9) Observations at page 15 that natural heirs alone need to be preferred is incorrect;
10. There is no injunction order not to act upon the decree of adoption; and (11) The provision contained under Order 41, Rule 33 of the C.P.C. ought to have been invoked.
15. Now, we wish to answer each of the above arguments. But before answering, at the outset, we may point out that the instant process of seeking to argue the case again by filing a letter of this sort is unsustainable under law. In fact, this sort of approach should be deprecated. When a judgment is rendered on merits, should the party feel that the same is incorrect and needs to be corrected, the only remedy is to file an appeal, but not to persist in filing letters of this sort which has got no legal sanction. Nevertheless, we proceed to answer 11 objections made by the learned counsel for the appellant against our judgment.
REG. OBJECTION NO. 1.
16. The launching of prosecution itself not only against the appellant, but also his father is not a disputed fact. This is borne out of the pleadings not controverted by the appellant in his counter and in fact, in the report of the railway official relied upon by the appellant, it is mentioned that the prosecution launched is still pending. The number of the case of the prosecution as C.C. No. 104/88 was not controverted by the appellant and the same was also accepted by the learned single Judge and that was never the point of controversy. Otherwise, there would have been a chance for the 1st respondent to correct the mistake. The prosecution, in fact, was launched for the offences punishable under Sections 406, 418, 463, 464, 465, 468 and 471 read with Section 420 of Indian Penal Code, but the case number is not C.C. No. 104/88, but it is Crime number 104/88 on the file of the same 10th Metropolitan Magistrate. The difference between crime number and CC number is that while Crime number is assigned initially when the First Information Report is launched, CC number is given after the charge-sheet is filed. As on the date of the pendency of the wit proceedings, the prosecution was in the stage of investigation and as such, it was assigned as Crime number 104/88. As such, there is no grave mistake of fact, the material fact being. the launching of prosecution and pendency of the same. This clarification is made by the 1st respondent herein by filing papers relating to Crime number 104/88 in reply to the proceedings dated 29-11-1988 in C.C. No. 104/88 of the file of the 10th Metropolitan Magistrate, filed by the appellant.
REG. OBJECTIONS 2 & 3 :
17. It is borne out by the pleadings in paras 5 and 6 of the writ petition, as also paragraph 6 of the reply filed by the 1st respondent and also of the judgment of the learned single Judge that "In pursuance of the order in W.P. No. 1865/89, the Railway Administration renewed the contract in regard to this stall in favour of R. 4. The writ petitioner pleads that this writ petition was directed to be posted along with W.P. No. 1865/89 and R-4 had withdrawn W.P. No. 1865/89 as the contract was renewed in his favour in pursuance of the interim order thereon" which is contained in the second paragraph at page 58 of the material papers in the writ appeal. The relevant portion to the same effect contained in the first paragraph at page 61 of the said material papers is extracted below :
"In pursuance of the order of this court in W.P. No. 1865/89, the contract for that stall was renewed only in favour of the R-4."
REG. OBJECTION NO. 4:
18. the appellant's father had been in picture not only in getting the ex parte decree in O.S. No.808/81, but also in filing the application during the year 1985 for renewal of licence purported to have been signed by the respondent No. 1 herein and it is the cause for criminal prosecution and both the appellant and his father figure as the accused in the said criminal prosecution referred to above in Crime No. 104/88 on the file of the 10th Metropolitan Magistrate, Secundera-bad.
REG: OBJECTION NO. 5 :
19. When the arguments were advanced on 20th day of December, 1991, the counsel for the appellant argued that appellant was adopted after the birth of a son to late Srinivas Rao and when a question was posed by this court that even if such adoption is accepted as true, the same is a nullity in view of the express bar contained under A.P. Adoptions and Maintenance Act, 1956, the counsel for the appellant had filed a letter dated 21-12-19-11 to the Registry to post the matter for being mentioned and the same came up on 23-12-1991, when the judgment was to be delivered and as such without dictating the judgement, the matter was again re-heard and enclosed to the above letter filed on behalf of the appellant, was the photostat copy of the decree dated 16-6-1981 in O.S. No. 808/81 on the file of the court of the District Munsif, Vijayawada and also the settlement deed pleaded by the appellant. In the further arguments advanced on 23-12-1991, it was argued by the learned counsel for the appellant that due to mistake, it was argued on 20-12-1991 trhat the appellant was adopted after the birth of a son to late Srinivas Rao, but now he had obtained instructions from the appellant that the adoption of the appellant took place on 31-3-1972 which was one year before the birth of natural son to late Srinivas Rao. The relevant portion of the letter is extracted below :
"The above Writ Appeal was heard for admission by Hon'ble Mr. Justice Sardar Ali Khan and Hon'ble Sri Justice B. Subhashan Reddy JJ. on 20-12-1991. The matter was adjourned to Monday the 23-12-1991 for judgement. During the course of arguments an issue relating the validity of the adoption of the appellant was raised. By mistake, I submitted that the adoption was after the birth of the son to adoptive father. I had now obtained insrtructions that the adoption was on 31-3 1972 and after one year of the said adoption, the first natural son was born to the deceased adoptive father of the appellant. Therefore, the adoption of the appellant was not hit by Section of Hindu Adoptions and Maintenance Act, 1956. To substantiate the said date of adoption, I am herewith circulating the decree copy in O.S. No. 808/81 dated 16-6-81. In fact, about the date of adoption and the birth of the natural son after one year there was no dispute."
20. A perusal of the decree itself shows that the appellant was 19 years as on the date of the passing of the decree while 4th respondent was aged 24 years and her sisters and brother were aged 22 years, 20 years, 16 years, 12 years and 8 years respectively.
REG. OBJECTION NO. 6:
21. The observations were necessary in the context of the pleading by the appellant that he was adopted and that there is a valid decree of adoption and that is the only document on which the appellant relied for his right to obtain licence and the said observations are based only on the copy of the decree filed by the appellant and they were relevant for the purpose of adjudication and this is the one touching upon the merits and it is not the appellant to say that the said observations are not necessary. The said observations were very much necessary.
REG. OBJECTION NO. 7 :
22. In the settlement dated 27-11-1988 projected by the appellant, his contention that it pertains to the licence of the stall in question, is disputed by the 1st respondent herein her counter-affidavit filed in reply to the additional affidavit by the appellant in the writ petition in paragraph 5 thereof asm evident from page 36 of the material papers in the writ appeal.
REG, OBJECTION NO. 8 :
23. Even though the period of licence was 5 years, the same operated for one year till 11-12-1990 as the amount was paid for such period when the writ proceedings were pending.
REG. OBJECTION NO. 9:
24. The observations were validly made as the natural heir is alway preferred to any other heir and more so, when the adoption decree pleaded by the appellant is under cloud and is also restrained to be acted by an injunction passed by a competent civil court which is still in, operation.
REG. OBJECTION NO. 10 :
25. The injunction not to act upon the decree of adoption has been granted in I. A. No. 1181/90 in O.S. No. 983/90 on the file of the court of the 1st Additional District Munsiff, Vijayawada and it is so-clearly pleaded in paragraph 4 of the reply affidavit filed by the 1st respondent and the same was not disputed by the appellant herein and in fact, accepted by learned Judge and more evident from a copy of the injunction order produced before this court.
REG. OBJECTION NO. 11 :
26. Having regard to the fact that fraud was played on the rights of the natural heirs being all helpless and hapless girls of tender age and were defrauded by their own paternal uncle and his son, their first cousin who is the appellant herein, to do complete justice, we felt necessary to invoke our powers under O.41, R. 33 of C.P.C. and that is a matter touching the merits of the case. What a tragedy, that girls of tender age burdened with still tender aged brother and orphaned due to the death of their mother and father and when approached, their paternal uncle (own brother of their late father Srinivas Rao) i.e. the appellant's father, has set up the appellant as an adopted son of late Srinivas Rao and then obtained ex partc decree. He himself being de facto plaintiff and again projecting himself as guardian of the said children of his late brother who were arrayed as defendants, even without notice being issued in the said application for appointment of guardian and then after the unfortunate incident of the death of the son of late Srinivas Rao, has projected the appellant during the year 1985 as an adopted son of late Srinivas Rao and filed a letter to that effect purported to have been signed by the 1st respondent herein. If this is not a fraud, nothing can be a fraud. This is a glaring case of exploitation by own paternal uncle of his helpless and hapless nieces of tender age among whom even most of them were minors during the year 1981 and this action of the appellant and his father fits in, in the famous saying "The fence eating the grass".
27. For the reasons mentioned supra, the allegation that there were tactual mistakes in the judgment rendered by us on 24-1-1992 have got absolutely no basis. Our judgment was based on pleadings and the material record including observations made and findings recorded by learned single Judge. As such, we find no substance in the letter for being mentioned dated 29-1-1992 and the same is hereby rejected. Consequently, our judgment dated 24-1-1992 stands and the same be communicated by the Registry forthwith.
28. Order accordingly.