ABDUL NABHI SAHEB Vs. MARTI RAMALAKSHMAMMAH

JUDGEMENT

(1.) This is an appeal by leave from the decision of Rajamannar J. pursuant to Clause 15, Letters Patent of this Court.

(2.) The relevant facts can shortly be stated. The plaintiff, appellant here, instituted a suit in the Court of the District Munsif of Guntur. At the trial, it was dismissed as being not maintainable on some preliminary objection, the merits not having been considered. That dismissal was set aside upon appeal by the plaintiff to the learned Subordinate Judge of Guntur who on 31 January 1947 directed the suit to be remanded for disposal by the learned District Munsif. Shortly thereafter, defendant 7, respondent before us, preferred an application for review to the learned Subordinate Judge. The grounds of review manifest clearly and unequivocably that the application was for the purpose of setting aside the whole of the previous order and decree of the Subordinate Judge directing the suit to be tried. No other relief is found to be contained in the application. It was disposed of by the learned Subordinate Judge on 31 March 1947 when the previous order or decree remanding the suit for trial was not interfered with; but the learned Judge directed two very minor and, I would have thought, entirely unnecessary-textual alterations to the wording of the former decree. In place of the words "is entitled to" he directed the word "can" to be substituted and the words "and in the light of the observations contained herein" to be deleted from para. 8 of his judgment. In regard to the first alteration, the new wording, it would seem, has identical effect as the old wording. With regard to the second alteration, whenever the trial Court is directed to hear and determine the suit it does so always having regard to the observations contained in the judgment of the appellate Court making such a direction. Defendant 7 preferred an appeal to this Court by way of second appeal against the decree and order of the learned Subordinate Judge directing the District Munsif to try the suit. In respect of that second appeal an application wa3 made to Rajamannar J. to grant a stay of the order of the learned Subordinate Judge so that until disposal of the second appeal, the learned District Munsif would not try the suit on the merits. The learned Judge acceded to the application and granted a stay. It is to be observed that the order, apart from the questions which are hereafter discussed was per-fealty proper. If appellant defendant 7 in the suit is successful in the second appeal, then it will be entirely unnecessary for the learned District Munsif to hear and determine the suit upon its merits and if he does so, in tho3e circumstances, it would be waste of judicial time and occasion an entirely unnecessary expenditure of litigant's money.

(3.) At the outset a preliminary point was taken on behalf of defendant 7, respondent, that no appeal lies in the present instance. It was argued that the order of Rajamannar J. granting a stay, is not a "judgment" within the contemplation of that word in Clause 15, Letters Patent. Consequently no appeal lies. The relevant wording of the Letters Patent which was added by an amendment made in 1929 is the following: An appeal shall He to the said High Court from a judgment of one Judge of the said High Court...made in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court. The application made to Rajamannar J. was referable to a second appeal then pending before this Court and in dealing with it, there is no doubt, the learned Judge was exercising appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by the Subordinate Judge's Court of Guntur, which is subject to the superintendence of this Court.