LexPENU BALAKRISHNA IYER AND ORS versus SRI ARIYM. RAMASW AMI IYER AND ORS.
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7 S.C.R. SUPREME COURT HEPORT8 49 PENU BALAKRISHNA IYER AND ORS v. SRI ARIY A M. RAMASW AMI IYER AND ORS. [P. B. GAJENDRAGADKAR, c. J., K. N. WANCHOO, J. c. SHAH, N. RAJAGOPALA AYYANGAR ANDS. M. S!KRI JJ.] 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 pais- ing decree not satisfied-Proprietu and Leua!itv-Code of Civil Procedure, 1908 (Act 5 of 1908), s. 100-Constitution of India, Art. 136. The respondents brought a suit for a mandatory injunction directing the removal of certain masonry structure on suit site and for a pPrmanent injunction restraining the appellants from encroaching upon the suit property and from causing obstruc· tion 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. 'J'.he ap- pellants cla.:med the suit property as absolute owners and as such, they \Vere entitled to use it in any tnanner they pleased. The trial Court decreed the suit. On appeal. the learned Subor- dinate Judge set aside the decree. On challenge of this decree by the respondents in second appeal before the High Court, the learned single Judge passei;I a decree in their favour. All that the learned Judge stated in h's judgment was that "after a careful considerat'.on of all the issues that arise for decision in this second appeal, I am of the opinion that the best form in which a decr·ce coJlrl be given to the olaintiffs is in the follo\ving 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 judg- ment 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. 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 fact; of e.ach case. 1964 ·Pcn.u Balakrislina IY"' and Or1. v. Sri Ariya M. ·Rama-~u-ami Iyer and Or8. 50 SUPREl\IE COURT REPORTS lJ 964) Raruha Singh v. Achal, A.LR. 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 obviou'i.lY 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 ap- peal, must be set aside on the ground that the judgment deli- vered by the learned Judge did not satisfy the basic and legiti- mate requirements of a judgment under the Code of Civil Procedure. 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 No. 91 of 1955. M. S. K. ·Sastri and M. S. Narasimhan. for the appellants. K. N. R.ajagopa/ Sastri and B. K. B. Naidu, for respon- dents Nos. 1 to 4. M1rch.6, 1964. The Judgment of the Court was delivered by Gojenaragwlkar, c.J. 0AJENDRAGADKAR, 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 C
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