Gopala Gounder vs Kasi Ammal and Another

S.S. Subramani, J.—The only substantial question of law formulated for consideration at the time of admission of second appeal reads thus:

Whether the lower appellate court, while rejecting the claim of 1st respondent for maintenance, has not committed an error of law in granting

maintenance to 2nd respondent who is not the legitimate son of the appellant even as per the lower appellate court?

Defendant in O.S. No. 595 of 1989 on the file of District Munsif''s Court, Gingee, is the appellant herein.

Suit was filed by his wife and minor son, claiming maintenance u/s 18 of the Hindu Adoptions and Maintenance Act.

In this Judgment, reference to parties will be according to their rank in the suit.

First plaintiff claimed that she is the legally wedded wife of defendant, and in their wedlock, second plaintiff was born to them. It is said that the

marriage was according to Custom prevalent in their community. It is also said in para 3 of plaint that at the instance of his first wife, defendant is

not properly, looking after her affairs and also that of her son, and she has to maintain the second plaintiff only by doing hard labour. It is said that

the defendant is bound to maintain them, and it is a moral as well as statutory obligation.

In the written statement filed by defendant, he disputed the marriage. He was already married to the elder sister of first plaintiff in which he has

got two daughters. When there was a first marriage existing, it was impossible for him to contract another marriage. He denied that section and

plaintiff was born to him through first plaintiff. He prayed for dismissal of the suit.

Trial court took oral and documentary evidence. Exs.A-1 to A-20 were marked on the side of plaintiffs. Exs.B-1 to B-10 were marked on the

side of defendant. 1st plaintiff was examined as P.W.1, and five other witnesses were examined on the side of plaintiffs. Defendant examined

himself as R.W.1 and examined another withness namely his wife as D.W.2.

Taking into consideration the entire evidence, the trial court held that both the plaintiffs are entitled to maintenance, It further held that there was

marriage between defendant and first plaintiff, and second plaintiff was born that wel-lock. Rs. 300 and Rs. 400 were awarded as maintenance to

plaintiffs respectively. Arrears of maintenance was also awarded.

Defendant preferred A.S. No. 496 of 1994 before Sub Judge, Villupuram. Lower appellate court affirmed the finding that there was marriage

between defendant and first plaintiff, but declared the same as null and void since the first marriage was subsisting. Consequently that part of the

decree which gave the first plaintiff maintenance was set aside, and the appeal was allowed to that extent. In regard, to second plaintiff, the

decision of the trial court was affirmed. It was held that second plaintiff was born in that marriage and though he is an illegimate son of defendant,

he is entitled to maintenance, u/s 16 of the Hindu Marriage Act read with Sections 21 and 22 of the Hindu Adoptions and Maintenance Act. It is

this finding that is challenged by defendant in this second appeal.

At the time of argument, learned counsel for respondent/plaintiff wanted this Court to invoke the power under 0.41, Rule 33, C.P.C. Reason

for advancing such an argument is that even though first plaintiff has not preferred first appeal or cross-appeal, denial of maintenance to first plaintiff

by lower appellate court is illegal. I will consider this argument at the appropriate stage.

While considering the substantial question of law, the only point urged by learned counsel for appellant/defendant is that in the plaint the details

of the marriage are not given, nor about the ceremonies, and the allegations are vague. It is further contended by learned counsel that even on the

basis of evidence, it cannot be said that any marriage, was performed. Only if there was a marriage, the question whether it is void will arise, and, if

there was no marriage, there is no question of any relationship and the question of paying maintenance also, therefore, will not arise.

It is true that in the plaint it is only stated that a marriage was performed accordingly to custom of the community. In paragraph 3 of the plaint,

this is what is stated:

Learned counsel for appellant/defendant relied on certain decisions to contend tha t unless there is a specific pleading regarding the custom, this

question should not have been considered by the lower appellate court. Specific reference was made to the decisions reported in Surjit Kaur v.

Garja Singh and Ors. (1994)1 L.W. 38 (S.C.), Kunjithapatham v. Dhrensasoundari 1969 L. W. 257 and Phankari and Ors. v. The State AIR

1965 J.& K. 105,

In Surjit Kaur v. Garja Singh and Ors. (1994) 1 L.W. 38, was a case of widow getting remarried and the marriage was based on custom. The

Honourable Supreme Court held that unless the custom was pleaded and proved, the marriage cannot be taken as proved. Factually also, the case

of marriage was not proved. The other two cases were cases of bigami under Sections 494 and 495 of the Indian Penal Code. I do not think that

those decisions have any relevance to the facts or this case.

Whether the pleading is-sufficient came for consideration in K. Mathialagan v. Mala Devi (1989) 2 L. W.361. In that case, M. Srinivasan, J.

(as he then was), had occasion to consider the pleading in which it was only stated that the parties got married according to Sastric Rites and

Customs. Learned Judge held thus:

It has been repeatedly held that any amount of evidence in the absence of pleading is inadmissible. But at the same time, courts have pointed out

that the substance of the pleading can be taken into account and not the form thereof. In the present case, the of original petition contained a

statement that the respond -- dent was married to the appellant according to Hindu Sastric kites and Customs. That pleading is sufficient to cover

the tying of thali and exchanging of garlands as such a custom has developed in this State for quite some time and in fact that is the main cause for

Tamil Nadu Act 21 of 1967. It cannot, therefore, be contended that in this case, there was no pleading at all to support the evidence at the time

when it was let in. At any rate, the amendment of the petition having been allowed, it is deemed to have been part of the original petition from the

inception.

The Kerala High Court had occasion to consider a similar question under the Madras Marumakkathayam Act. There also the parties were

governed by special statute and the marriage was also to be performed according to statutory conditions. In that decisions reported in Sreekumar

v. Prema ILR (1976)1 Ker 644, a Division Bench consisting of Gopalan Nambiar, J. and Balakrishnan Eradi, J. (as he then was) held that the

requirement of the law would be satisfied by a statement that the marriage was performed in accordance with the Marukakkathayam Custom.

Both the courts below have concurrently held that there was marriage ceremony, and first plaintiff was accepted as wife by defendant. Even

though learned counsel for the appellant wanted to take me through the evidence, I did not permit him, since the entire question of law raised is

only about the right of the second plaintiff to get maintenance. Apart from the same, learned counsel for respondents placed before me the entire

documentary evidence that was adduced before the trial court, to prove that both the first plaintiff and defendant were residing together as man and

wife, and society was also recognising them as such, and defendant was also recognising second plaintiff as his son. Voters list, ration card and

various other documents, all taken together, show that the first plaintiff was the wife of defendant, and their marriage was celebrated in accordance

with the custom. Learned counsel for appellant also placed before me the oral evidence of various witnesses. According to learned counsel, there

are various inconsistencies in the depositions. I do not think that I should accept the said contention, since the witnesses were deposing about

something which took place more than 20 years back. The inconsistencies, even if there is any, are only minor, and they cannot upset the

concurrent findings of fact, Therefore, the concurrent finding of the courts below that first plaintiff was married by defendant is confirmed

The further question that arises for consideration is, whether second plaintiff is entitled to maintenance. This question is raised on the basis that

even according to first plaintiff, defendant was already married and his first wife is none other than the elder sister of the first plaintiff, and in that

marriage they have two daughters, and when that marriage is subsisting, the relationship of defendant, even if any, with first plaintiff cannot be said

as legal relationship. Therefore, second plaintiff is not entitled to maintenance. It is only on that basis, the question of law has also been raised in the

memorandum of appeal.

I do not think that the said contention could be a accepted in view of the specific provision under the Hindu Adoptions and Maintenance Act.

Section 21 of that Act defines as to who are the dependants entitled to maintenance. An illegitimate son or daughter is also a dependant u/s 21.

Section 20 of that Act also gives a right to an illegitimate son to claim maintenance from his father or mother. So long as these sections enable an

illegitimate son also to get maintenance, contention of learned counsel for appellant is only to be discarded. A reference is also to be made to

Section 16 of the Hindu Marriage Act. Notwithstanding the fact that a marriage which is null and void u/s 11 of the Hindu Marriage Act, a child

born of such marriage shall be deemed to be legitimate for the said purpose. So, the second plaintiff, even though illegimate, by the provisions of

Section 16 of the Hindu Marriage Act, he must be considered as a legitimate son and, therefore, he is entitled to maintenance. The substantial

question of law is, therefore, found against the appellant.

Now I will come to the contention of learned counsel for respondent whereby he wanted this Court to exercise its powers under Order 41,

Rule 33, C.P.C.

In a recent decision of the Honourable Supreme Court reported in K. Muthuswami Gounder v. N. Palaniappa Gounder A.I.R.1998 S.C.W.

3031, this question was considered. The argument advanced by learned senior advocate appearing for appellant before the Honourable Supreme

Court is given in paragraph 8 of that decision, and it is similar to the one raised in the case on hand. Paragraph 8 reads thus:

Shri K. Parasaran, learned Senior Advocate appearing for the appellant contended that the judgment of the trial court granting a decree for

redemption became final and operated as res judicata by not having been appealed against and the High Court could not dismiss the suit by setting

aside the decree for redemption in the absence of an appeal by the defendant in the redemption suit; that the decree for redemption passed by the

trial court having attained finality in the absence of an appeal to the first appellate court by the defendant, the High Court even in exercise of

powers under Order 41, Rule 33 could exercise its powers only against the judgment of the first appellate court and not as against the judgment of

the trial court and destroy the finality of that part of the trial court judgment which was not appealed against; that Order 41, Rule 33 was not

attracted to the facts arising in the present case.

Repelling the argument extracted above, the Honourable Supreme Court held as follows, in paragraph 12:

Order 41, Rule 3 enables the appellate court to pass any decree or order which ought to have been made and to make such further order or

decree as the case may be in favour of all or any of the parties even though, (i) the appeal is as to part only of the decree; and (ii) such party or

parties may not have filed an appeal. The necessary condition for exercising the power under the Rule is that the parties to the proceeding are

before the court and the question raised properly arises one (out) of the judgment of the lower court and in that event the appellate court could

consider any objection to any part of the order or decree of the court and set it right. We are fortified in this view by the decision of this Court in

Mahant Dhangir and Another Vs. Madan Mohan and Others, . No hard and fast rule can be laid down as to the circumstances under which the

power can be exercised under 0.41, Rule 33, C.P.C., and each case must depend upon its own facts. The Rule enables the appellate court to pass

any order/decree which ought to have been passed. The general principle is that a decree is binding on the parties to it until it is set aside in

appropriate proceedings, ordinarily, the appellate court must not vary or reverse a decree/order in favour of a party who has not preferred any

appeal and this rule holds good notwithstanding Order 41, Rule 33, C.P.C. However, in exceptional cases the rule enables the appellate court to

pass such decree or order as ought to have been passed even if such decree would be in favour of parties who have not filed any appeal. The

power though discretionary should not be declined to be exercised merely on the ground that the party has not filed any appeals. We are not

impressed with argument that the finding as to the nature of Ex.A-6 the Security Deed has become final as the finding operates as res judicata.

When the entire matter was still in appeal and any part of the finding could be varied by the appellate court, it is idle to contend that the same had

become final. So also when the matter had not attained finality and still in dispute, the principle of res judicata could not arise. In some case finding

recorded at an earlier stage will operate as res judicata if such finding has become final. In the present case, that was not the position. The High

Court has to find out the rights of the parties arising out of the deed under Ex.A-6 and necessarily had to give a finding one way or the other to

determine the status of the appellant as puisne mortgagee. In doing so, the High Court decided that the document Ex.A-6 did not amount to a

charge and, therefore, the appellant did not derive any rights of puisne mortgagee thereunder. The High Court having so held, proceeded further to

upset the decree as otherwise if the decree for redemption remained in the face of the finding of non-existence of a charge with the consequent

right as puisne mortgagee, the position would be anomalous if not absurd. And so, the High Court in the special circumstances arising in this case

exercised the discretion vested in it under Order 41, Rule 33, C.P.C. It cannot be said that such a question was not germane to the determination

of the matter in issue. To defend the finding in his favour, the respondent could contend that the appellant could not claim to be a puisne mortgagee

as no charge arises from Ex.A-6. In that event, it cannot be said that there is any inconsistency in the stand of the respondent. Therefore, we find

that there is no merit in the contention of the appellant and the same is rejected.

[Italics supplied]

In view of the aforesaid decision of the Honourable Supreme Court, contention of learned counsel for respondent that there is power under Order

41, Rule 33, C.P.C. to consider the question of maintenance to first plaintiff, is justified. The question regarding the status of the first plaintiff has

not become final when the same question is agitated by appellant in second appeal. When legitimacy or illegitimacy of second plaintiff is raised in

this second appeal, naturally, the legal status of the first plaintiff has to be considered. If that be so, whether there was marriage between defendant

and first plaintiff also requires consideration. Merely because the first plaintiff has not filed an appeal or cross-appeal, that will not debar her from

agitating the same before this Court and to claim maintenance. But the question is, whether she is entitled to maintenance. That is a different

question unconnected with the powers of the appellate court. Even according to first plaintiff, she is the second wife. Her marriage took place after

the Hindu Marriage Act came into force. At that time, defendant was having a wife living with him. It is also admitted that they have got two

daughters in that marriage. First wife is none other than the elder sister of first plaintiff. When these facts are admitted, what will be the legal right of

first plaintiff to claim maintenance? u/s 18 of the Hindu Adoptions and Maintenance Act, maintenance is given to a Hindu wife, whether married

before or after the commencement of the Act..

Learned counsel for respondent relied on a decision of the Andhra Pradesh High Court reported in C. Obula Konda Reddy Vs. C. Pedda

Venkata Lakshmamma, , wherein a learned Judge of the Andhra Pradesh High Court held that the Hindu Adoptions and Maintenance Act does

not make a distinction between first wife or second wife, and the learned Judge further went on and said that a wife whose marriage is valid

according to the provisions of the Hindu Marriage Act, is entitled to maintenance. But I do not think that I should accept the said decision as

correct.

In Yamunabai Anantrao Adhav Vs. Anantrao Shivram Adhav and Another, , the question that came for consideration was, whether second

wife whose marriage took place while the first marriage was subsisting, was entitled to maintenance u/s 125 of the Criminal Procedure Code, and

what is her legal status. We must note that u/s 125 of the Code also, maintenance is granted to a wife who is unable to maintain herself. In

Yamunabai''s case this question was considered in detail. Paragraphs 3 and 4 are relevant for our purpose. They read thus:

For appreciating the status of a Hindu woman marrying a Hindu male with a living spouse some of the provisions of the Hindu Marriage Act, 1955

(hereinafter referred to as the Act) have to be examined. Section 11 of the Act declares such a marriage as null and void in the following terms:

Void marriage: Any marriage resolemnisied after the commencement of this Act shall be null and void and may, on a petition presented by

either party thereto against the other party, be so declared by a decree or nullity if it contravenes any one of the conditions specified in clauses (i),

(iv) and (v) of Section 5.

Clause (i) of Section 5 lays down, for a lawful marriage, the necessary condition that neither party should have a spouse living at the time of the

marriage. A marriage in contravention of this condition, therefore, is null and void. It was urged on behalf of the appellant that a marriage should

not be treated as void because such a marriage was earlier recognised in law and custom. A reference was made to Section 12 of the Act and it

was said that in any event the marriage would be voidable. There is no merit in this contention. By reason of the overriding effect of the Act as

mentioned in Section 4, no aid can be taken of the earlier Hindu Law or any custom or usage as a part of that Law inconsistent with any provision

of the Act. So far as Section 12 in concerned, it is confined to other categories of marriages and is not applicable to open solemnised in violation of

Section 5(i) of the Act. Sub-section. (2) of Section 12 puts further restrictions on such a right. The cases covered by this section are not void ab

initio, and unless all the conditions mentioned therein are fulfilled and the aggrieved party exercises the right to avoid it, the same continues by

Section 11 are void ipso jure, that is, void from the very inception, and have to be ignored as not existing in law at all if and when such a question

arises. Although the section permits a formal declaration to be made on the presentation of a petition, it is not essential to obtain in advance such a

formal declaration from a court in a proceeding specifically commenced for the purpose.

The provisions of Section 16, which is quoted below, also throw light on this aspect:

Legitimacy of children of void and voidable marriages: Notwithstanding that a marriage is null and void u/s 11, any child of such marriage who

would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the

Marriage Laws (Amendment) Act, 1976 (68 of 1976), and whether or not a decree of nullity is granted in respect of that marriage under this Act

and whether or not the marriage is held to be void otherwise than on a petition under this Act.

(2) Where a decree of nullity is granted in respect of a voidable marriage u/s 12, any child begotten or conceived before the decree is made, who

would have been legitimate child of the parties of the marriage if at the date of the decree if had been dissolved instead of being annulled, shall be

deemed to be their legitimate child notwithstanding the decree of nullity.

(3) Nothing contained in Sub-section. (1) or Sub-Section (2) shall be construed as conferring upto any child of a marriage which is null and void or

which is annulled by a decree of nullity u/s 12, any rights in or to the property of any person, other than the parents, in any case where, but for the

passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child

of his parents.

[Italics added]

Sub-section. (l), by using the words underlined above, clearly implies that a void marriage can be held to be so without a prior formal declaration

by a court in a proceeding. While dealing with cases covered by Section 12, Sub-Section (2) refers to a decree of nullity as an essential condition

and Sub-section. (3) prominently brings out the basic difference in the character of void and voidable marriages as covered respectively by

Sections 11 and 12. It is also to be seen that while the legislature has considered it advisable to uphold the legitimacy of the paternity of a child

born out of a void marriage, it has not extended a similar protection in respect of the mother of the child. The marriage of the appellant must,

therefore, be treated as null and void from its very inception.

The question then arisen as to whether the expression ''Wife'' used in Section 125 of the code should be interpreted to mean only a legally wedded

wife not covered by Section 11 of the Act. The word is not defined in the code except indicating in the Explanation its inclusive character so as to

cover a divorce. A woman cannot be a divorcee unless there was a marriage in the eye of law preceding that status. The expression must,

therefore, be given the meaning in which it is understood in law applicable to the parties, subject to the Explanation (b), which is not relevant in the

present context.

It is further argued by learned counsel that in the case of maintenance, it is a human problem of subsistence and the personal law applicable to

parties has to be eschewed from consideration. Of course, some support for such argument is found in the decision reported in Rajeshbhai v.

Shantabai AIR 1982 Bom. 231. wherein in para 30, a learned Judge has held thus:

...it would not be permissible to include in the terms ""wife"" or ""widow"" that relation . which is not recognised by law. However, it is implicit in the

judgment of this Court in Govindarao''s case that there can be class of persons who, as I propose to call, are ""illegitimate wives or widows"" who

can be the subject of benefaction of law of maintenance, notwithstanding that eventually their legal status is annulled. Undoubtedly a female spouse

united by marriage enters upon a status and is conferred with immediate as well as inchoate rights attached to such status by virtue of her marriage

and that is because of the gift and conferment of law. When that status is shaken and found to have no sanction, it does not follow that even the

inchoate rights of such person are totally eclipsed. As distinct from succession or inheritance, the right of maintenance can be treated to be a

separate one, the first two arising upon the natural or civil death of the husband. Maintenance thus is a personal right. In its character it can be

treated to be a secular right recognised by almost all the systems of personal laws in various decrees and under varying conditions, though,

therefore, for the purpose of the Succession Act and the Maintenance Act the terms ""wife"" and ""widow"" would have a restricted articulate legal

meaning, that by itself would not be the position when the matter arises for the purpose of providing the measures of sustenance on consideration

of justice and fair play involved and basic to all human and social relations.

According to me, the aforesaid decision also cannot be held to be good law in view of the decision of the Honourable supreme court in Yamunabai

Anantrao Adhav Vs. Anantrao Shivram Adhav and Another, wherein, in paragraph 6, their Lordships have held thus: (relevant portion extracted):

The attempt to exclude altogether the personal law applicable to the parties from consideration also has to be repelled. The section has been

enacted in the interest of a wife, and one who intends to take benefit under Sub-section.(1)(a) has to establish the necessary condition, namely, that

she is the wife of the person concerned. This issue can be decided only by a reference to the law applicable to the parties. It is only where an

applicant establishes her status on (or) relationship with reference to the personal law that an application for maintenance can be maintained. Once

the right under the section is established by proof of necessary conditions mentioned therein, it cannot be defeated by further reference to the

personal law. The issue whether the section is attracted or not cannot be answered except by the reference to the appropriate law governing the

parties...

Our High Court has occasion to consider a similar question in the decision reported in A.P.K. Narayanaswami Reddiar Vs. Padmanabhan and

Others, . Relevant portion of para 11 reads thus:

We come back, therefore, to the question Whether, where the factum of marriage is established and the form of it is in accordance with the

personal law, but because it is bigamous, it is void, the woman, who is contracting party, could still be regarded as a wife or something in between

a wife and a concubine, with a right to claim maintenance from the man. Apart from considerations of morals or sympathy, we are unable to say

that there is a status of wifebood for such a woman intermediate between the legitimate wife, so to speak, and a concubine. There is no textual

authority or statutory authority to be found for such a position; nor do we feel justified that we can recognise such a status, especially when the

policy of the law is to declare a bigamous marriage as void, and, in fact, constitute it as a crime, which is liable to be punished.

This principle was reiterated by another Division Bench in the decision reported in T.P.K. Natesan Chettiar Vs. Achiyayee Ammal, , wherein

their Lordships said that, ""in law a woman can be given recognition either as the wife of a man or as his concubine and there cannot be an

termediary class picturesquely described as an ""illegitimate wife""....

If this is the legal position, I am of the view that an argument on the ground of sympathy or humanitarian consideration will not arise for

determination.

Learned counsel for respondent also argued that u/s 25 of the Hindu Marriage Act, a wife whose marriage is declared void is also entitled to

permanent alimoncy. If that principle is accepted, maintenance also will have to be granted. In this case, I am only considering Section 18 of the

Hindu Adoptions and Maintenance Act. If any proceeding is initiated by either party to the marriage for declaration of the marriage on the ground

of nullity, it is for that court to decide the scope of Section 25 of the Hindu Marriage Act. This decision will not bar the first Plaintiff from agitating

that question. Subject to this observation, the second appeal is dismissed, however, without any order as to costs.

C.R.P. No. 802 of 1998: The revision arises out of O.S. No. 86 of 1998, on the file of District Munsif''s Court, Ginjee, filed by the two

daughters of the defendant, for partition, against the second plaintiff, defendant and others. In that suit, they also moved an application for

injunction restraining the second plaintiff herein from proceeding with the execution of decree for maintenance by bringing the properties of

defendant for sale. An ad interim injunction was also granted. The same is challenged by second plaintiff (who is ranked as 1st defendant in O.S.

No. 86 of 1998), under Article 227 of the Constitution of India.

It is clear from the narration of facts that the two daughters have filed the said suit only at the instigation of the defendant (Gopal Gounder) who

has refused to pay maintenance to his son second plaintiff (Sivakumar), and also to the first plaintiff (second wife).

Along with the second appeal, appellant filed C.M.P. No. 12697 of 1996, for stay of execution. This Court, on 5.11.1996, passed an order

to the effect that interim stay already granted is made absolute on condition that the petitioner pays directly to the second respondent (Minor

Sivakumar) 50% of the decree amount within six weeks from that date, and also continue to pay a sum of Rs. 300 per month towards the future

maintenance. That order has not been complied with. It was thereafter, O.S. No. 86 of 1998 has been filed by the two daughter of the defendant,

making their father also as a party, and they have also moved for an injunction not to proceed with the execution. Narration of facts shows that the

defendant did not get an interim order. So, he wanted to stall the execution by setting up his daughters to file the suit O.S. No. 86 of 1998.

According to me, the institution of that suit is not bona fide and it is only an attempt to prevent the execution of the decree validly obtained by

plaintiffs in O.S. No. 595 of 1989. Even if a suit for partition may be maintainable, there is no necessity for an injunction since the property that

could be brought to sale is only the right, title and interest of defendant. Over the same, the two daughters may not have any right. In spite of the

same, when they have moved for an injunction, it can only be said that the court machinery is being used for an illegal purpose and it is used as a

means of vexation and oppression in the process of litigation. As was held by Their Lordships of the Supreme Court in the decision re-ported in

K.K. Modi and K.N. Modi A.I.R.1998 S.C.1166, the process of court must be used for bona fide purpose and the same should not be abused.

If it is intended for some oblique purpose, the court will have to interfere in such cases.

That part, the order impugned in the revision also does not satisfy the legal requirements under Order 39, Rule 1, C.P.C. It simply says:

Injunction and notice"". It is per se illegal.

Taking into consideration the above facts, I.A. No. 389 of 1998 in O.S. No. 86 of 1998, on the file of District Munsif''s Court, Gingee is

dismissed, and the interim order granted by the lower court is vacated. The civil revision petition is allowed. No costs.

In the result, the second appeal is dismissed, however, without any order as to costs, as indicated above. C.R.P. is allowed. No costs.

Connected C.M.Ps. in both the second appeal and C.R.P. are closed.