PATTHI SRINADHAM Vs. STATE

JUDGEMENT

(1.) On 16-1-61, Srinivasachari, J. pronounced Judgment in S. A. No. 209 of 1957 dismissing the appeal with costs. In that judgment, the learned Judge stated in the end "No leave" which obviously means that he refused leave to the appellants-plaintiffs to file a Letters Patent Appeal against that decision. The two appellants filed S.R. No. 5072 of 1961 praying for review of that order of Srinivasachari, J. so far as that portion of the judgment "No leave" is concerned. The office raised an objection saying that no review lay against "No leave" in a judgment of the Court; thereupon, this matter was heard by me. 2. The questions that arise for consideration are:-- (1) Whether a review lies in law against an order of "No leave" by which leave was refused for filing a Letters Patent Appeal?

(2.) If review lies, whether the order of "No leave" by Srinivasachari in S. A. No. 209 of 1957 dated 16-1-1961 has to be reviewed? POINT NO. I :- The contention of the learned Advocate for the petitioners is that the order which is sought to be reviewed namely, refusing of leave to file a Letters Patent Appeal is not part of the main judgment, that it is a separate order under the Letters Patent Act and that as such, a review lies. The relevant part of Clause 15 of the Letters Patent reads as follows: ".....and that notwithstanding anything herein before provided an appeal shall fie to the said High Court from a judgment of one Judge of the said High Court..... pursuant to Section 108 of the Government of India Act (made tin or after the 1st day of February, 1929) in the exercise of appellate jurisdiction in respect of a decree of order made in the exercise of appellate jurisdiction by court subject to the superintendence of the said High Court, where the Judge who passed the judgment declares that the case is a fit one for appeal." Rule 105 of the Appellate Side Rules of the Andhra Pradesh High Court runs as follows:-- "When an appeal against an appellate decree or order has been heard and disposed of by a single Judge, an application for leave to appeal under Clause 15 of the Letters Patent of the High Court shall be made orally and immediately after the judgment has been delivered." Rule 95 of the Appellate Side Rules of the Madras High Court was also substantially to the same effect.

(3.) In support of the contention that the order refusing leave to appeal is not a part of the main judgment but is a separate and distinct order, the following can be urged. In Clause 15 itself, the words relating to the judgment viz., "where the judge who passed the judgment" are used hi the past tense and the words relating to declaration viz., "declares that the case is a fit one for appeal" are used in the present tense. This shows that an order granting or refusing leave has to be made after the judgment has been passed. Rule 105 provides that an application that the case is a fit one for further appeal should be made orally and immediately after the judgment has been delivered. In In re Sridhar Rao, AIR 1958 Andh-Pra 60, a Bench of this Court held that R. 95 of the Madras Appellate Side Rules (corresponding to R. 105) was mandatory and that it did not confer any discretionary power on the Court to excuse the delay. This means that there shall be no appreciable gap of time between the pronouncement of the judgment and the application for leave to appeal which application has been referred to in Clause 15 as a declaration by the Court. The words used suggest that the application has to be made orally after the judgment has been delivered and consequently the order on the application for leave has to be passed only after the judgment has been rendered.