V. RAMA RAO Vs. K. BALAKOTAIAH

JUDGEMENT

(1.) THE appellants are the defendants in O.S. No. 5 of 1985 on the file of the Vacation Judge (Additional District Judge) laid for a perpetual injunction and I.A. No. 40 of 1985 for ad -interim injunction. The Vacation Court granted ad -interim injunction restraining the 1st appellant from carrying on lussi and butter -milk business in shop No. 4 in addition to sale of fruits and sweetmeats which he is normally carrying on. It is the case of the respondent that the first appellant has no right to carry on this business in shop No. 4. The Commissioner appointed by the Court below inspected the shop and found that the 1st appellant has been carrying on the business of sale of lussi and butter -milk as well. It is the case of the 1st appellant that in addition to sale of fruits and sweetmeats, he is also permitted to carry on the business of sate of lussi and butter -milk under the contract and therefore he is entitled to carry on the same business. The lower Court did not accept this contention and issued ad -interim injunction, as against which the present appeal has been filed. Mr. Bikshapathy, learned counsel for the respondent raised preliminary objection regarding the maintainability of the appeal. He contended that after the Vacation Judge passed orders the papers have been transmitted to the Court of the District Munsif at Kavali and the order passed by the Vacation Judge shall be deemed to be an order passed by the District Munsif by operation of sub -section (5) of Section 32 of the Andhra Pradesh Civil Courts Act, 1972 (for short "the Act") and therefore the appeal lies only to the Subordinate Judge. The appellants having filed an appeal in the Court of the Subordinate Judge to pursue that remedy the appeal in this Court is incompetent. I am wholly unable to agree with the learned counsel Sub -section (1) of Sec. 32 of the Act introduces a non -obstante clause to transact the business of the Courts in the Districts during the summer vacation and authorises the Government in consultation with the High Court to appoint a Vacation Civil Judge not below the rank of a Subordinate Judge. The jurisdiction of the local limits have been engrafted in Sub -section (2) of Section 32 of the Act The situs at which the Court has to be held has been adumbrated in sub -section (3) and during the period of appointment of Vacation Civil Judge, by operation of sub -section (4) the Courts in the District for the purpose of Sec. 4 of the Limitation Act, 1963, shall be deemed to be closed. Then comes the relevant Clauses 5 and 6, which read thus:

(2.) WITH regard to the merits of the case, it is not in dispute that the 1st appellant is the highest bidder purchasing the lease -hold rights to run the business and was allotted shop Nos. 2 and 4. Initially he was authorised to run the sale of the fruits and sweet -meats and in respect of butter milk and lussi a letter has been placed before me dated 19 -5 -1985 written by the Divisional Manager, Ongole, in which it is stated that the first appellant Ramarao is also a successful bidder to run the lussi and butter -milk stall at Kavali R.T.C. bus station on a monthly rent of Rs. 1350/ -, It is the case of the respondent that he was authorised to run this stall in the compound complex but not in the building complex in which stall Nos. 2 and 4 have been allotted to him. No such averment has been made in the pleadings and therefore it cannot be considered that the 1st appellant was authorised to run this business in the compound complex. Prima -facie, the necessary conclusion is that the 1st appellant is authorised to run the business in sale of butter -milk and lussi in either stall No. 2 or stall No. 4, It is the case of the second appellant that he has been doing the sale of fancy goods and bakery in stall No. 5. But it is the case of the respondent that the second appellant was given licence only to sell books. There is no injunction sought for against the second appellant with regard to his right to sell fancy goods and bakery. Therefore, the injunction issued against him in that regard also is not sustainable.