P BATHINAIAH Vs. P VISWESWARA PILLAI

JUDGEMENT

(1.) The question which is referred to us is whether a Letters Patent Appeal under Clause 15 is maintainable against the judgment of a single Judge of this Court allowing an appeal brought by the respondent against the order of the Subordinate Judge. Tirupathi remanding the suit brought by the appellants to the trial Court for disposal on merits.

(2.) What happened in this case is; The plaintiff. who seeks to bring this Letters Patent Appeal, filed O. S. No. 149 of 1966 in the District Munsifs Court, Srikalahasthi for permanent injunction in respect of certain properties. That claim was founded on two grounds. First of them is that he was adopted by Jagannadhan Pillai who was the owner of half share in the schedule property and consequently he became entitled to that share on the demise of his adoptive father. The second ground is a family arrangement letter executed by his natural father, Sundaram Pillai in regard to the other half share. He, however, failed to produce before the trial Court the letter said to be evidencing the alleged family arrangement. Consequently. the trial Court dismissed the suit in regard to the half share which was founded on that letter. The plaintiff carried the matter to the Subordinate Judges Court. Tirupathi in A. S. No. 207 of 1971 and in the appeal he applied under Order 41. Rule 27, Civil P. C. for receiving the family arrangement letter as additional evidence. The lower appellate Court admitted the document, allowed the appeal and remanded the case back to the trial Court for fresh disposal in respect of the claim based on the family arrangement letter. This time the defendants filed C. M. A. No. 562 of 1972 in this Court under Order 43. Rule 1, Civil P. C. against this order of remand of the first appellate Court, chinnappa Reddy. J. before whom the C. M. A. came UP for disposal, allowed it setting aside the order of the first appellate Court admitting additional evidence, and remitted the appeal back to that Court for its disposal on merits. The plaintiff seeks to impugn this order of Chinnappa Reddy, J., by filing this Letters Patent Appeal.

(3.) The Office took an objection that the C.M.A. disposed of by Chinnappa Reddy, J. is in the nature of a second appeal and that no letters patent appeal lies against an order therein unless the learned Judge himself granted leave for appeal. But the learned Judge did not mention anything in his order about the granting or refusing leave, obviously for the reason that no such request was made before him. Sri I. A. Naidu, learned counsel for the appellant maintained that a Letters Patent Appeal does lie and so this reference has been made to us to decide the question as to the maintainability.