Andhra HC (Pre-Telangana)
K. Abdul Malik vs D. Shama Vali And Others on 24 January, 1989
Equivalent citations: AIR1990AP93, AIR 1990 ANDHRA PRADESH 93
ORDER
1. The case of the revisionist herein is that the respondents had filed a civil suit during vacation before the Vacation Civil Judge, Kurnool, and obtained a temporary injunction. After vacation, the matter came up before the District Munsif, on the application made by the revisionist to vacate the injunction and the same was done by the Dist. Munsif. Consequently an appeal was preferred to the learned Subordinate Judge, Adoni, whd held that the District Munsif had no jurisdiction to vacate the injunction granted by the Vacation on Civil Judge, Kurnool. The error is quite apparent. Inasmuch as during the vacation it was certainly competent for the vacation civil Judge to grant a temporary injunction for the vacation period which, he did, and latter transmitted the record back to the Court of competent jurisdiction, namely the District Munsif, Adoni. Therefore, for all practical purposes, the order passed by the Vacation Civil Judge must be deemed to have been made by the District Munsif himself, which it could have done normally, but for the intervention of vacation. Hence it was certainly competent for the learned District Munsif to vacate the order of injunction granted earlier by the vacation Civil Judge. Since the aggrieved party has rightly preferred appeal, the learned subordinate Judge, ought to have either confirmed the injunction or vacated the same, and it is not certainly. within the jurisdiction to say that the District Munsif lacked jurisdiction. Hence the order under revision is set aside.
2. The learned counsel for the respondents relied on a decision of this Court reported in V. Ramarao v. K... Balakotaiah, (1985) 2 And.h LT 276 wherein Ramaswamy. J., was faced with a situation that arose out of sub-CIS. (5) and (6) of S. 32 of the A. P. Civh Courts Act. Dealing with that aspect, it has been held by the learned Judge:
"No doubt, a regarding of sub-sec. (5) would manifest that after the re-opening of the courts concerned after summer vacation, order passed by the Vacation Civil Judge and the case shall stand transferred to the Court have jurisdiction any judgment, decree, order or proceedings passed by the Vacation Civil Judge, deemed to be the judgment etc., passed by the Court concerned. But the legislature has taken care to see by introducing sub-sec. (6) that notwithstanding such deemed judgment, decree or order made under sub-sec. (5), when the appeal is provided under the law against such judgment, decree, order passed by the Vacation Civil Judge, then appeal shall lie only to the High Court. The ambit of the entire S. 32 is based on legal fiction. The object appears to be that during summer vacation, the litigant, in urgent cases instead of driving him/her to approach the High Court and to avoid over burden to the High Court and to make avail of easy and inexpensive access to courts, enacted S. 32. On appointing a Vacation Judge, he should be conferred with jurisdiction. So the fiction deemed closure of the civil courts in the District is engrafted in sub-sec. (4) of S. 32. In appointment of a Vacation Civil Judge, the power exercisable by the concerned presiding officer of the court stands transferred to the vacation Civil Judge. As a result, by further fiction, of deemed provisions under subsection (5) of Section 32, the judgment, the decree, or order passed by the Vacation Civil Judge was declared to be deemed to be the judgment, decree or order passed by the court concerned. The legislature animation in engrafting sub-section (6) of S. 32, appears to be that the order passed by the Vacation Civil Judge shall not be dealt with by the Judicial Officer inferior to the Vacation Civil Judge. It is already seen that under sub-section (1) of S.32 of the Act, the Vacation Civil Judge shall not below the rank of a Subordinate Judge. Normally against the original judgment, decree, or order the appeal shall tie against the judgment etc., of subordinate Judge or District Judge, only to the High Court, when such situation does arise, when the Vacation Civil Judge is a District Judge, it is incomprehensible to contend that merely because the order is transmitted to the District Munsif, the District Munsif is empowered to revise the order or reconsider the order passed by the Vacation Civil Judge, be it a District Judge or a Subordinate Judge. If the contention of the learned counsel if given credience to the logical result would be the order passed by the Vacation District Judge would be reconsidered by the District Munsif in a suit triable by a District Munsif or a Subordinate Judge,to sit over as an appellate Judge over the orders passed by the Vacation District Judge. Such situation would be incongruous and incompatible. Taking these factors into consideration, obviously the legislature did not intend to create such a situation, therefore, engrafted sub-section (6) thereof, providing appeal to the appellate court to which an appeal against the judgment, decree or order of such Judge would normally lie. i.e., High Court. Structural and contextual perspectives make me to decline acceptance of the contention of the learned counsel for the respondent which would be against the legislative intendment apart from fraught with serious consequences and render sub-section (6) otios. Therefore, I have no hesitation to hold that sub-section (6) covers the field and the appeal against the order of the Vacation Civil Judge (Additional District Judge) shall lie only to the High Court)."
The aforesaid judgment, however, needs, in my judgment, explanation and it would not cover a situation of the nature obtaining in the case before me. Sub-sections (5) and (6) of Section 32 of the A.P. Civil Courls Act, 1972, may be set out:
"(5) On the re-opening of the District Court, a court of subordinate Judge or a court of district Munsif after the summer vacation, all suits, appeals, and other proceedings pending in the court of the Vacation Civil judge which but for this section would have been instituted or pending in such District Court, court of Subordinate Judge or court of District Munsif as the case may be, shall stand transferred to the Court concerned and any judgment, decree, order or proceedings passed by the Vacation Civil Judge, shall, after such transfer, be deemed to be a judgment, decree, order or proceeding passed by the Court concerned.
(6) Notwithstanding the provisions of sub- section (5), any appeal from the judgment, decree or order of the court of the Vacation Civil Judge shall when such appeal is allowed by law, lie to the High Court."
From the above it can be seen that the position contemplated by sub-section (6) is . applicable only to those cases where the party aggrieved by the order made by the Vacation Civil Judge intends to prefer an appeal therefrom, it is certainly open to do so to the superior court. But after vacation, when the matter is remitted back to the court of concerned jurisdiction, namely, the District Munsif's Court, then it is equally open to the party concerned, if he is aggrieved by the order passed by the Vacation Civil Judge to move that court to have that order vacated and it is certainly competent for the District Munsif s court to adjudicate upon that. There is no question of want of jurisdiction, because the said order, though in actuality passed by the Vacation Civil Judge, will be deemed to have been passed by the learned District Munsif himself. Hence, in this case, the party aggrieved has chosen one of the two alternatives. As he did not choose to prefer an appeal from the order passed by the Vacation Civil Judge, but preferred to wait until the period of vacation was over, and the matter was transmitted back to the court of the District Munsif, and then invoked the jurisdiction of the court of the District Munsif to get the injunction over vacated. Therefore, the question, of the court of the District Munsif lacking jurisdiction, does not arise. In the circumstances, the matter is now remanded back to the learned subordinate Judge to consider the case on merits in the CMA preferred without adverting to the question of jurisdiction.
3. The Civil Revision Petition is thus allowed, No costs and the matter is remitted back to the subordinated Judge, as observed above.
4. Revision allowed.