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 IA No. 40 of 1935 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 sale 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.
2. Mr. Bikshapathy, learned counsel for the respondent raised preliminary objection regarding the maintainability of the appeal.
3. 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-absente 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:
“(5) On the reopening of the District Court, a Court of Subordinate Judge or a Court of District Munsif after the summer vacation, all suits, appeals, and other proceedings pending in the Court of Vacation Civil Judge which, but for this section would have been instituted or pending in such District Court, Court of Subordinate Jude or Court of District Munsif as the case may be, shall stand transferred to the Court concerned and any judgment, decree, order or proceeding passed by the Vacation Civil Judge, shall after such transfer, be deemed to be a Judgment, decree, order or proceeding passed by the Court Concerned.
(6) Notwithstanding the provisions of sub-section (5), any appeal from the judgment, decree or order of the Court of the Vacation Civil Judge shall, when such appeal is allowed by law, lie to the High Court.”
4. No doubt, a reading of sub-section (5) would manifest that after the re-opening of the Courts concerned after summer vacation, orders passed by the Vacation Civil Judge and the case shall stand transferred to the Court having Jurisdiction and any judgment, decree, order or proceeding passed by the Vacation Civil Judge, deemed to be the judgment, etc. passed by the Court concerned. But the Legislature has taken care to see by introducing sub-section (6) that notwithstanding such deemed judgment, decree or order made under sub-section (5), when an appeal is provided under the law against such judgment, decree or order passed by the Vacation Civil Judge, then an appeal shall lie only to the High Court. The ambit of the entire Section 32 is based on legal fiction. The object appears to be that during summer vacation; the litigant, in urgent cases instead of driving him/her to approach the High Court and to avoid-ever burden to the High Court and to make avail of easy and inexpensive access to Courts, enacted Section 32. On appointing a Vacation Judge, he should be conferred with jurisdiction. So the fictional deemed closer of the Civil Courts in the District is engrafted in sub-section (4) of Section 32. In appointment of a Vacation Civil Judge, the power exercisable by the concerned presiding officer of the Court stands transferred to the Vacation Civil Judge. As a result, by further fiction, of deemed provisions under sub-section (5) of Section 32, the judgment, decree or order passed by the Vacation Civil Judge was declared to be the judgment, decree or order passed by the Court concerned. The Legislative animation in engrafting sub-section (6) of Section 32, appears to be that the order passed by the Vacation Civil Judge shall not be dealt with by the Judicial Officer inferior to the Vacation Civil Judge. It is already seen that under sub-section (1) of Sec. 32 of the Act, the Vacation Civil Judge shall be not below the rank of a Subordinate Judge. Normally against the original judgment, decree or order, the appeal shall lie against the judgment, etc.: of Subordinate Judge or District Judge, only to the High Court. When such situation does arise, when the Vacation Civil Judge is a District Judge, it is incomprehensible to contend that merely because the order is transmitted to the District Munsif, the District Munsif is empowered to revise the order or reconsider the order passed by the Vacation Civil Judge, be it a District Judge or a Subordinate Judge. If the contention of the learned counsel is given credence to the logical lesult would be the order passed by the Vacation District Judge would be reconsidered by the District Munsif in a suit triable by a District Munsif or a subordinate Judge, to sit over as an appellate Judge over the orders passed by the Vacation District Judge. Such situation would be incongruous and incompatible. Taking these factors into consideration, obviously the Legislature did not intend to create such a situation, therefore, engrafted sub-section (6) thereof, providing appeal to the appellate Court to which an appeal against the judgment, decree or order of such Judge would normally lie i.e, High Court, Structural and contextual perspectives make me to decline acceptance of the contention of the learned counsel for the respondent which would be against the legislative intendment apart from fraught with serious consequences and render sub-section (6) otios. Therefore, I have no hesitation to hold that sub-section (6) covers the field and the appeal against the order of the Vacation Civil Judge (Addl. District Judge) shall lie only to the High Court.
5. 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 Ramatao is also a successful bidder to run the lussi and butter-milk stall at Kaval 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. Primafacie, 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.
6. The appeal is accordingly allowed, but in the circumstances, without costs.
7. Any observations made herein shall be construed for the purpose of disposal of this appeal and the trial Court shall dispose of the suit in accordance with law and on the basis of evidence adduced by both the parties.