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PETITIONER: PENU BALAKRISHNA IYER AND ORS

       Vs.

RESPONDENT: SRI ARIYA M. RAMASWAMI IYER AND ORS.

DATE OF JUDGMENT: 06/03/1964

BENCH: GAJENDRAGADKAR, P.B. (CJ) BENCH: GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N. SHAH, J.C. AYYANGAR, N. RAJAGOPALA SIKRI, S.M.

CITATION:  1965 AIR  195            1964 SCR  (7)  49  CITATOR INFO :  RF         1973 SC 569  (22,25)

ACT: Decree-Special  Leave  against decision of  a  Single  Judge Right  to move under Letters Patent not  availed  of-Special Leave if and when can be revoked-Basic requirement in  pass- ing  decree  not satisfied-Propriety and Legality  -Code  of Civil  Procedure, 1908 (Act 5 of 1908), s.  100-Constitution of India, Art. 136.

HEADNOTE: The  respondents brought a suit for a  mandatory  injunction directing  the removal of certain masonry structure on  suit site   and  for  a  permanent  injunction  restraining   the appellants from encroaching upon the suit property and  from causing obstruction to the right of way of the residents  of the  village.   They claimed that the suit  property  formed part  of a public street and the appellants had no right  to encroach upon it.  The appellants claimed the suit  property as absolute owners and as such, they were entitled to use it in  any manner they pleased.  The trial.  Court decreed  the suit.   On appeal, the learned Subordinate Judge  set  aside the decree.  On challenge of this decree by the  respondents in  second appeal before the High Court, the learned  single Judge passed a decree in their favour.  All that the learned Judge  stated  in  his judgment was that  "after  a  careful consideration  of all the issues that arise for decision  in this  second appeal, I am of the opinion that the best  form in which a decree could be given to the plaintiffs is in the following terms" and then he proceeded to set out the  terms of  his decree.  On appeal by Special Leave  the  appellants contended  that the method adopted by the learned  Judge  in disposing of the second appeal before him clearly shows that the  judgment  delivered by him cannot  be  sustained.   The respondents,  raised a preliminary objection that since  the appellants did not avail themselves of the remedy  available to  them under the Letters Patent of the High  Court  either the  special Leave granted by this Court should be  revoked, or the appeal should be dismissed.

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Held:  It would not be possible to lay down  an  unqualified rule  that special leave should not be granted if the  party has  not  moved for leave under the Letters  Patent  and  it cannot  be  so granted, nor is it possible to  lay  down  an inflexible  rule  that if in such a case special  leave  has been  granted,  it must always and necessarily  be  revoked. Having  regard to the wide scope of the powers conferred  on this  Court under Art. 136, it is not possible and,  indeed, it  would  not be expedient, to lay down  any  general  rule which  would govern all cases.  The question as  to  whether the  jurisdiction  of this Court under Art.  136  should  be exercised or not, and if yes, on what terms and  conditions, is  a matter which this Court has to decide on the facts  of each case. 50 Raruha Singh v. Achal, A.I.R. 1961, S.C. 1097, referred to. In the present case, the learned Judge passed an order which reads more like an award made by an arbitrator who, by terms of his reference, is not under an obligation to give reasons for  his  conclusions embodied in the award.   When  such  a course  is adopted by the High Court in dealing with  second appeals,  it must obviously be corrected and the High  Court must  be  asked to deal with the matter in a normal  way  in accordance with law.  Therefore, the decree passed in second appeal,  must be set aside on the ground that  the  judgment delivered by the learned Judge did not satisfy the basic and legitimate  requirements  of a judgment under  the  Code  of Civil Procedure.

JUDGMENT: CIVIL APPELLATE JURISDICTION:Civil Appeal No. 79 of 1962. Appeal  by special leave from the judgment and decree  dated February 20, 1958 of the Madras High Court in Second  Appeal Lo. 91 of 1955. M.   S. K. Sastri and M. S. Narasimhan, for the appellants. K.   N. Rajagopal Sastri and B. K. B. Naidu, for respondents Nos.  1 to 4. March 6, 1964.  The Judgment of the Court was delivered by GAJENDRAGADKAR,  C.J.-This appeal by Special leave raises  a short question about the correctness, propriety and legality of  the  decree passed by the Madras High  Court  in  second appeal  No.  91.  of 1955.  The  respondents  had  sued  the appellants   in  the  Court  of  the  District   Munsif   of Thiruvaiyaru  for  a  mandatory  injunction  directing   the removal  of certain masonry structure standing on  the  suit site which was marked as A B C D in the plan attached to the plaint  and  for  a  permanent  injunction  restraining  the appellants from building upon or otherwise encroaching  upon the suit property and from causing obstruction to the  right of  way  of the residents of the village in which  the  suit property  was situated.  According to the  respondents,  the plot   on  which  encroachment  had  been  caused   by   the construction of the masonry structure by the appellants  was a street and the reliefs they claimed were on the basis that the  said  property formed part of a public street  and  the appellants had no right to encroach upon it.  This suit  had been  instituted  by  the respondents  in  a  representative capacity on behalf of themselves and other residents in  the locality. The  appellants  disputed the main allegation  of  the  res- pondents that the masonry structure to which the respondents had  objected,  stood  on any part  of  the  public  street.

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According  to them, the plot on which the masonry  structure stood along with the adjoining property belonged to them as 51 absolute owners and as such, they were entitled to use it in any  manner they pleased.  On these  pleadings,  appropriate issues  were  framed  by  the learned  trial  Judge  and  on considering  the evidence, findings were recorded by him  in favour of the respondents.  In the result, the  respondents’ suit  was  decreed  and injunction was  issued  against  the appellants. The appellants then took the dispute before the Subordi nate Judge at Kumbakonam.  On the substantive issues which  arose between  the  parties, the learned  Subordinate  Judge  made findings  against  the respondents and in  consequence,  the decree passed by the Trial Court was set aside.  The learned Subordinate  Judge, however, made it clear that it might  be open  to  the respondents to agitate "against  any  case  of customary  rights  in  the nature of an  easement  in  their favour,  if they can legally do so, without any bar, and  if they  are  so  advised." That question was left  by  him  as undecided  as  it did not arise before him  in  the  present suit. This decree was challenged by the respondents by  preferring a second appeal before the Madras High Court.   BasheerAhmed Sayeed  J. who heard this appeal, passed a decree  which  is challenged  before  us  by the  appellants  in  the  present appeal.  All that the learned Judge has done in his judgment is  to state that "after a careful consideration of all  the issues  that arise for decision in this Second Appeal, 1  am of the opinion that the best form in which a decree could be given to the plaintiffs is in the following terms," and then the learned Judge has proceeded to set out the terms of  his decree in clauses (1), (2) & (3), the 3rd clause being  sub- divided  into clauses (a), (b) & (c).  As to the costs,  the learned  Judge directed that parties should bear  their  own costs  throughout.  The appellants contend that  the  method adopted  by  the learned Judge in disposing  of  the  second appeal before him clearly shows that the judgment  delivered by him cannot be sustained. Before  dealing with this contention, however, it is  neces- sary to refer to a preliminary objection raised by Mr. Raja- gopal Sastri on behalf of the respondents.  He contends that it  was open to the appellants to apply for leave to file  a Letters  Patent appeal against the judgment of  the  learned Single Judge and since the appellants have not adopted  that course,  it  is not open to them to come to  this  Court  by special  leave.  He has, therefore, argued that  either  the leave  granted  by this Court to the  appellants  should  be revoked,  or  the appeal should be dismissed on  the  ground that  this  was  not  a matter  in  which  this  Court  will interfere having regard to the fact that a remedy  available to the appellant under the Letters Patent of the Madras High Court has not been availed of by them. In resisting this preliminary objection, Mr. M. S. K. Sastri for the appellants has relied on the decision of this  Court in 52 Raruha  Singh  v. Achal Singh and Others(1). In  that  case, this  Court  allowed an appeal preferred  against  a  second appellate  decision of the Madhya Pradesh High Court on  the ground that the said impugned decision had interfered with a finding of fact contrary to the provisions of section 100 of the  Civil  Procedure Code.  It appears that  a  preliminary objection  had been raised in that case by  the  respondents similar  to the one which is raised in the  present  appeal,

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and  in  rejecting that preliminary  objection,  this  Court observed that "since leave has been -ranted, we do not think we can or should virtually revoke the leave by accepting the preliminary  objection." It is because of  this  observation that this appeal has been referred to a larger Bench.  It is true that the statement on which Mr. M. S. K. Sastri  relies does  seem to support his contention; but we  are  satisfied that the said statement should no, be interpreted as  laying down a general proposition that if special leave is  -ranted in  a  given  case, it can never  be  revoked.   On  several occasions,  this Court has revoked special leave when  facts were  brought to its notice to justify the adoption of  that course,  and  so  we do not think Mr. M.  S.  K.  Sastri  is justified in contending that leave granted to the appellants under  Art.  136.  as  in the present  case,  can  never  be revoked.  The true position is that in a given case, if  the respondent  brings to the notice of this Court  facts  which would  justify  the  Court in  revoking  the  leave  already granted, this Court would, in the interests of justice,  not hesitate  to  adopt that course.   Therefore,  the  question which  falls to be considered is whether the present  appeal should be dismissed solely on the ground that the appellants did  not  apply for leave under the relevant clause  of  the Letters Patent of the Madras High Court. There is no doubt that if a party wants to avail himself  of the remedy provided by Art. 136 in cases where the decree of the High Court under appeal has been passed under s. 100  C. P.  C., it is necessary that the party must apply for  leave under  the  Letters Patent, if the relevant  clause  of  the Letters  Patent provides for an appeal to a  Division  Bench against  the  ,decision  of a single  Judge.   Normally,  an application  for  special leave against a  second  appellate decision would not be granted unless the remedy of a Letters Patent  Appeal  has  been availed of.  In  fact,  no  appeal against   second   appellate   decisions   appears   to   be contemplated by the Constitution as is evident from the fact that Art. 133(3) expressly provides that normally an  appeal will  not  lie to this Court from the judgment,  decree,  or final order of one Judge of the High Court, It is only where an application for special leave against a second  appellate judgment raises issues of law of general importance that the Court  would grant the application and proceed to deal  with the merits of the contentions raised by the appellant.   But even in such cases, it is necessary that the remedy 53 by way of a Letters Patent Appeal must be resorted to before a  party  comes to this Court. Even so, we do not  think  it would be possible to lay down an unqualified rule that leave should  not be granted if the party has not moved for  leave under the Letters Patent and it cannot be so granted, nor is it possible to lay down an inflexible rule that if in such a case  leave has been granted it must always and  necessarily be  revoked.  Having regard to the wide scope of the  powers conferred  on this Court under Art. 136, it is not  possible and,  indeed,  it would not be expedient, to  lay  down  any general rule which would govern all cases.  The question  as to  whether  the jurisdiction of this Court under  Art.  136 should  be exercised or not, and if yes, on what  terms  and conditions,  is a matter which this Court has to  decide  on the facts of each case. In dealing with the respondents’ contention that the special leave  granted to the appellant against a  second  appellate decision should be revoked on the ground that the  appellant had  not applied for leave under the relevant clause of  the Letters Patent it is necessary to bear in mind one  relevant

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fact.   If at the stage when special leave is  granted,  the respondent caveator appears and resists the grant of special leave  on  the ground that the appellant has not  moved  for Letters Patent Appeal, and it appers that the said ground is argued  and rejected on the merits and consequently  special leave  is  granted,  then  it  would  not  be  open  to  the respondent to raise the same point over again at the time of the final hearing of the appeal.  If, however, the  caveator does  not  appear, or having appeared, does not  raise  this point,  or  even if he raises the point the Court  does  not decide it before granting special leave, the same point  can be  raised  at the time of final hearing.  In such  a  case, there would be no technical bar of res judicata, and the de- cision on the point will depend upon a proper  consideration of all the relevant facts. Reverting then to the main point raised by the appellants in this appeal, we do not think we would be justified in refus- ing  to  deal with the merits of the appeal  solely  on  the -round  that the appellants did not move the learned  single Judge for leave to prefer an appeal before a Division  Bench of  the  Madras High Court.  The infirmity in  the  judgment under appeal is so glaring that the ends of justice  require that we should set aside the decree and send the matter back to  the  Madras High Court for disposal in  accordance  with law.   The  limitations  placed by s. 100,  C.P.C.,  on  the jurisdiction  and powers of the High Courts in dealing  with second appeals are well-known and the procedure which has to be followed by the High Courts in dealing with such  appeals is also well-established.  In the present case, the  learned Judge  has  passed an order which reads more like  an  award made by an arbitrator who, 54 by  terms  of his reference, is not under an  obligation  to give reasons for his conclusions embodied in the award. When such  a course is adopted by the High Court in dealing  with second appeals, it must obviously be corrected and the  High Court must be asked to deal with the matter in a normal  way in  accordance  with law.  That is why we  think  we  cannot uphold  the  preliminary objection raised by  Mr.  Rajagopal Sastri,  even  though we disapprove of the  conduct  of  the appellants  in  coming to this Court without  attempting  to obtain  the  leave  of the learned single Judge  to  file  a Letters Patent Appeal before a Division Bench of the  Madras High  Court.  Therefore, without expressing any  opinion  on the merits of the decree passed in second appeal, we set  it aside  on  the  ground that the judgment  delivered  by  the learned  judge  does not satisfy the  basic  and  legitimate requirements   of  a  judgment  under  the  Code  of   Civil Procedure. The  result is, the appeal is allowed, the decree passed  by the High Court is set aside and second appeal No. 91 of 1955 is sent back to the Madras High Court with a direction  that it  should be dealt with in accordance with law.  The  costs of this appeal would be costs in the second appeal. Appeal allowed. 55