Decided on October 01,1952

Venkata Reddi And Ors. Appellant
Ventrapragada Ramabrahmam Respondents


Raghava Rao, J. - (1.) THE petition presented under Section 19, Madras Agriculturists Relief Act to the Court of First Instance whore its decree had gone up on appeal and on second appeal also to this Court was returned by that Court for presentation to the proper Court on the ground that the proper Court was the Court of second appeal and not itself. To this view of the learned District Munsif, Mr. Krishna Rao urges his objection on the basis of a ruling in a Divisional Bench of this Court consisting of the present Chief Justice and Somasundaram J. in C. M. P. No. 918 of 1950. Mr. Nagaramayya for the respondents has, however, invited me to dismiss this petition on the ground that there is an appeal rightly preferred against the order of the learned District Munsif to the Sub -Court, Vijayawada which is pending. The learned counsel for the respondents says that if the order under revision is an appealable order, I ought not to interfere in revision with the order in question. Mr. Krishna Rao seeks to get over the point made by Mr. Nagaramayya by saying that against the order of the learned District Munsif now under consideration no appeal can properly lie because all that Section 141, Civil P. C. renders possible of application to the original petition for scaling down with which we are concerned in the present case is the procedure provided by the Code of Civil Procedure which may well include a provision for the return of the petition to the proper Court under Order 7 Rule 10, Civil P. C. but not necessarily a provision for right of appeal under Order 43 Rule 1 (a), Civil P. C. The learned counsel has, in my opinion, rightly maintained that the right of appeal is not a matter of procedure but a substantive right which unless expressly given by the statute cannot be held to be available to a litigant. The interpretation to be placed upon the language in Order 43 Rule 1 (a) is, in my opinion, this namely, that if under Order 7 Rule 10 an order for the return of a plaint has been made, that will certainly be appealable. I am inclined to think that the right of appeal under that provision cannot stand attracted to orders made in connection with matters other than suits or plaints merely because of Section 141 Civil P. C. which can only imply and involve that the mode of trial laid down by the Code in regard to suite will be available in the case of all original petitions as well. It is stated by Mr. Krishna Rao that there is unreported ruling of this Court (Wadsworth J.) in support of his present submission. I am satisfied that even apart from any such authority the submission of the learned counsel is sound and that the preliminary point of objection of Mr. Nagaramayya based upon Section 141, Civil P. C. has no force and must be repelled. It is next contended that the appeal now pending in the Sub -Court at Vijayawada is valid under Section 25A of the Madras Agriculturists' Relief Act. That section provides for an appeal against orders amending or refusing to amend decrees - -language which according to the submission of the learned counsel Mr. Nagaramayya is wide enough to include an order for the return of the petition under Section 19 on the ground of want of jurisdiction in the Court to which it is presented, Mr. Krishna Rao urges in answer to this further point of Mr. Nagaramayya that refusing to amend can only mean refusing to amend on a consideration of the merits and not a refusal to amend on the ground of want of jurisdiction in the Court to which the petition for amendment is presented. Mr. Krishna Rao urges that the right of appeal conferred by Section 25A ought to be understood in this restricted sense which is the only natural sense that one can 'prima facie' impute to the words amending or refusing to amend in the context in which they occur. I am of the opinion that if the language of the rule authorising an appeal is sufficiently wide to take in a case of the kind before me by a Court of first instance, such a right of appeal ought not to be restricted by the considerations of the kind relied on by Mr. Krishna Rao. No consideration except that derived from the language of the rule authorising the appeal ought to enter into the mind of the Court when deciding the question of appealability and if any consideration other than the literal meaning of the language is permissible I rather think that an interpretation in favour of appealability should prevail rather than the interpretation against appealability. The only one consideration that is permissible is whether the language in its literal tenor leaves one in doubt whether a particular case is within the scope of the language or outside it. In the present case as I have already indicated, the language of Section 25A is sufficiently wide to authorise an appeal preferred by the petitioners to the sub -Court, Vijayawada.
(2.) IN view of my upholding the objection of Mr. Nagaramayya based upon Section 25A, Madras Agriculturists Relief Act it follows that this revision petition must be dismissed but in the circumstances without costs. Mr. Krishna Rao wants me to make it clear that in view of this objection taken by the respondents to this revision petition the competency of the appeal preferred by his clients to the Sub - Court would no longer be a matter for controversy between the parties there. I can only say that it would not be a matter of controversy here after. Mr. Nagaramayya, it must be stated in fairness to Him has in answer to a question put by me, conceded that it will not be open to him or his clients to question the validity of the appeal in the Sub -Court at Vijayawada.;

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