Penu Balakrishna Iyer And Ors vs Sri Ariya M. Ramaswami Iyer And Ors

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 79 of 1962

Decision Date: 6 March 1964

Coram: P.B. Gajendragadkar, K.N. Wanchoo, J.C. Shah, N. Rajagopala Ayyangar, S.M. Sikri

In the matter titled Penu Balakrishna Iyer and others versus Sri Ariya M. Ramaswami Iyer and others, the Supreme Court of India delivered its judgment on 6 March 1964. The judgment was authored by Chief Justice P. B. Gajendragadkar, with Justices K. N. Wanchoo, J. C. Shah, N. Rajagopala Ayyangar and S. M. Sikri forming the bench. The petitioners were identified as Penu Balakrishna Iyer and others, while the respondents were Sri Ariya M. Ramaswami Iyer and others. The case is reported in the 1965 All India Reporter at page 195 and in the 1964 Supreme Court Reporter (7) 49, with a subsequent citation in the 1973 Supreme Court Reports at page 569, paragraphs 22 and 25. The issues under consideration involved a decree and a petition for special leave against the decision of a single judge, the non‑use of the remedy under the Letters Patent of the High Court, the conditions under which special leave may be revoked, the failure to satisfy the basic requirement for passing a decree, and questions of propriety and legality under Section 100 of the Code of Civil Procedure, 1908, and Article 136 of the Constitution of India.

The respondents had instituted a suit seeking a mandatory injunction to compel removal of a masonry structure situated on the suit property, together with a permanent injunction to prevent the appellants from encroaching on the property or obstructing the village residents’ right of way. The respondents asserted that the property formed part of a public street and that the appellants possessed no right of encroachment. Conversely, the appellants contended that they owned the suit property absolutely and, therefore, were entitled to use it in any manner of their choosing. The trial court decreed in favour of the respondents. On appeal, the learned Subordinate Judge set aside that decree. The respondents then challenged the Subordinate Judge’s decision by filing a second appeal before the High Court, where a learned single judge granted a decree in their favour. In his judgment, the High Court judge stated, “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 proceeded to enumerate the terms of the decree.

Subsequently, the appellants applied for special leave to appeal, contending that the method adopted by the High Court judge in disposing of the second appeal demonstrated that his judgment could not be sustained. The respondents raised a preliminary objection, arguing that because the appellants had not availed themselves of the remedy provided under the Letters Patent of the High Court, the special leave either should be revoked or the appeal dismissed. The Court held that it was not possible to lay down an unconditional rule that special leave must be refused where a party has not moved for leave under the Letters Patent, nor could a rigid rule be imposed that, once special leave is granted in such circumstances, it must invariably be revoked. The Court emphasized the need for a flexible approach in exercising the powers conferred by Article 136, guided by the facts of each case.

The Court observed that because Article 136 gives it very wide powers, it cannot create a single rule that will apply to every case. It further noted that deciding whether to use the jurisdiction of Article 136, and on what terms, must be decided based on the specific facts of each case. The Court cited Raruha Singh v. Achal, A.I.R. 1961, S.C. 1097, as authority for this principle in support of its view. In the case before it, the learned Judge of the High Court issued an order that resembled an arbitrator's award, which ordinarily does not require written reasons for its conclusions. The Court explained that when a High Court adopts such a procedure in a second appeal, the practice must be corrected because it does not meet the judgment requirements of the Code of Civil Procedure. Consequently, the Court held that the decree issued in the second appeal must be set aside, because the learned Judge’s decision failed to fulfil the basic and legitimate requirements of a judgment under the Code. The Court emphasized that the flexibility inherent in Article 136 is intended to address exceptional circumstances that cannot be anticipated by rigid rules. Therefore, the Court cannot refuse to entertain a special leave petition merely because the applicant failed to pursue alternative remedies under the Letters Patent of the High Court.

The appeal, designated as Civil Appeal No. 79 of 1962, was filed by way of special leave against the judgment and decree dated February 20, 1958, of the Madras High Court in Second Appeal No. 91 of 1955. Counsel for the appellants were Ms. M. S. K. Sastri and Mr. M. S. Narasimhan, while counsel for respondents numbered one to four were Mr. K. N. Rajagopal Sastri and Mr. B. K. B. Naidu. The judgment was delivered on March 6, 1964, by Chief Justice Gajendragadkar, who presided over the bench in this matter. The appeal raised a concise question concerning the correctness, propriety and legality of the decree that the Madras High Court had rendered in the second appeal. The respondents had instituted a suit in the Court of the District Munsif of Thiruvaiyaru seeking a mandatory injunction for removal of a masonry structure located on the suit site. The plan attached to the plaint marked the structure at points A, B, C and D as shown in the accompanying diagram. The respondents also asked for a permanent injunction to restrain the appellants from building on, or otherwise encroaching upon, the suit property, and from obstructing the right of way of the village residents. The respondents asserted that the plot on which the appellants had constructed the masonry structure was a public street. They claimed that because the property formed part of a public street, the appellants had no right to encroach upon it. The suit was filed by the respondents in a representative capacity on behalf of themselves and other local residents.

In this dispute the respondents maintained that the masonry structure complained of stood on a public street, and therefore the respondents sought its removal. The appellants, on the contrary, asserted that the plot on which the masonry structure was erected, together with the adjoining land, belonged to them as absolute owners and that they were consequently entitled to use that land in any manner they chose. On the basis of these opposite pleadings the learned trial Judge framed the appropriate issues, examined the evidence adduced by both sides, and recorded findings that favored the respondents. Accordingly, the trial Court decreed in favour of the respondents and granted a mandatory injunction ordering the appellants to remove the masonry structure and to refrain from any further encroachment upon the suit property or from causing obstruction to the right‑of‑way of the village residents.

Both parties then appealed the trial judgment before the Subordinate Judge at Kumbakonam. After hearing the substantive matters raised by the parties, the Subordinate Judge made findings that were adverse to the respondents and consequently set aside the decree passed by the trial Court. While overturning the earlier decree, the Subordinate Judge expressly observed that the respondents might still be entitled to assert any customary rights that were analogous to an easement in their favour, provided that they could do so legally and without any procedural bar, and he indicated that the question of such customary rights remained undecided because it had not arisen for determination in the present suit. The respondents subsequently filed a second appeal before the Madras High Court. The learned High Court Judge, Basheer‑Ahmed Sayeed, after a careful consideration of all the issues raised in that second appeal, concluded that the most appropriate form of relief for the plaintiffs could be expressed in three principal clauses, the third of which was further divided into sub‑clauses (a), (b) and (c). Regarding costs, the High Court Judge directed that each party should bear its own costs throughout the litigation. The appellants have now challenged that High Court decree, contending that the method adopted by the learned Judge in disposing of the second appeal demonstrates that the judgment cannot be sustained. Before addressing that substantive contention, the Court must first consider a preliminary objection raised on behalf of the respondents by counsel, who argued that the appellants were at liberty to seek leave to file a Letters Patent appeal against the Single Judge’s judgment, and because the appellants did not pursue that route, they should not be permitted to approach this Court by way of a special leave petition. The respondents further submitted that either the leave previously granted to the appellants should be revoked or the present appeal should be dismissed as a matter beyond this Court’s jurisdiction, given that the appellants had not availed themselves of the remedy provided under the Letters Patent of the Madras High Court.

In response to that preliminary objection, counsel for the appellants relied upon the authority of this Court in Raruha Singh v. Achal Singh and Others, where the Court allowed an appeal against a second appellate decision of the Madhya Pradesh High Court on the ground that the impugned decision had interfered with a finding of fact contrary to the provisions of section 100 of the Civil Procedure Code. The Court in that earlier case observed that, because leave had already been granted, it would be inappropriate to virtually revoke that leave by accepting a similar preliminary objection. On the basis of that observation, the present appeal was referred to a larger Bench for further consideration.

In response to the preliminary objection raised by the respondents, counsel for the appellants relied on the decision of this Court in Raruha Singh v. Achal Singh and Others(1). In that precedent, this Court had permitted an appeal against a second appellate order of the Madhya Pradesh High Court because the impugned order had interfered with a factual finding in violation of section 100 of the Civil Procedure Code. The respondents in that earlier case had also raised a preliminary objection similar to the one presented in the present matter. When rejecting that objection, the Court had observed that, “since leave has been granted, we do not think we can or should virtually revoke the leave by accepting the preliminary objection.” That observation formed part of the reason why the present appeal was referred to a larger Bench. While counsel for the appellants argued that the quoted passage supported a blanket rule that a special leave once granted could never be withdrawn, the Court concluded that the passage should not be interpreted as establishing such a general principle. The Court noted that on several occasions it had rescinded special leave where the circumstances presented justified such action, and therefore the contention that leave granted under Article 136 in the present case could never be revoked was not warranted. The Court explained that, should a respondent bring to its attention facts that merit revocation of previously granted leave, the Court would, in the interests of justice, not hesitate to withdraw that leave. Consequently, the key issue to be decided was whether the appeal should be dismissed solely because the appellants had not applied for leave under the appropriate clause of the Letters Patent of the Madras High Court. The Court affirmed that when a party seeks to invoke the remedy provided by Article 136 in cases where the High Court decree under appeal was issued pursuant to section 100 of the Civil Procedure Code, the party must first seek leave under the Letters Patent, provided the relevant clause permits an appeal to a Division Bench from the decision of a single Judge. Ordinarily, the Court would not grant special leave against a second appellate decision unless the party had first exhausted the Letters Patent remedy. Moreover, the Constitution does not contemplate an appeal to this Court from a second appellate judgment, as indicated by Article 133(3), which expressly states that ordinarily an appeal will not lie to this Court from the judgment, decree, or final order of a single High Court Judge. The Court further clarified that only when a special leave application against a second appellate judgment raises issues of law of general importance would the Court entertain the application and consider its merits, and even in such circumstances the party must first resort to the Letters Patent remedy before approaching this Court.

The Court explained that an appeal to this Court from a decree, order, or final order pronounced by a single Judge of the High Court is normally permissible only when the applicant first seeks leave under the appropriate clause of the Letters Patent, where that clause provides for a Division Bench appeal. The Court further observed that a special leave application against a second appellate judgment will be entertained only when the matter raises questions of law of general importance. Even in such circumstances, the Court stressed that the party must first exhaust the remedy of a Letters Patent Appeal before approaching this Court. Nevertheless, the Court declined to formulate an absolute rule that special leave must be denied whenever a party has not previously applied for a Letters Patent Appeal, nor to adopt an inflexible rule that any special leave already granted must automatically be set aside on that ground. Considering the broad discretion granted by Art. 136, the Court held that it would be neither possible nor advisable to impose a uniform rule governing all cases. Accordingly, the decision to exercise jurisdiction under Art. 136, and the terms on which it may be exercised, must be made after examining the facts of each individual case. The Court then turned to the respondents’ argument that the special leave should be revoked because the appellant had not applied for leave under the relevant Letters Patent clause. It noted that if, at the stage of granting special leave, the respondent caveator appears, objects on that ground, and the objection is fully argued and rejected, resulting in the grant of leave, the respondent cannot later revive the same objection during the final hearing. Conversely, if the caveator does not appear, or appears but does not raise the issue, or raises it and the Court does not decide it before granting leave, the point may be re‑raised at the final hearing without being barred by res judicata, and the Court must then consider all relevant facts. Finally, the Court concluded that it would be inappropriate to refuse to consider the merits of the appeal merely because the appellants had not sought leave from the single Judge to obtain a Division Bench appeal in the Madras High Court. The judgment under appeal was deemed seriously flawed, requiring further relief.

In the present case the Court observed that the judgment under appeal exhibited such a serious defect that the interests of justice required the decree to be set aside and the entire matter to be returned to the Madras High Court for disposal in accordance with law. The Court noted that the limitations imposed by section 100 of the Code of Civil Procedure on the jurisdiction and powers of High Courts in dealing with second appeals are well‑known, and that the procedural steps to be followed by a High Court in such appeals are firmly established. In this particular matter, the learned judge had issued an order that resembled an arbitral award; such an award, by its very terms of reference, is not required to provide reasons for the conclusions it contains. The Court held that when a High Court adopts this approach in a second‑appeal proceeding, it must be corrected and the High Court must be directed to consider the case in the ordinary manner prescribed by law.

The Court further explained that, consequently, it could not uphold the preliminary objection raised by the counsel who had argued that the appeal should be dismissed on procedural grounds, even though the Court disapproved of the appellants’ decision to approach this Court without first seeking leave from the learned single judge to file a Letters Patent Appeal before a Division Bench of the Madras High Court. Without expressing any view on the substantive merits of the decree that had been passed in the second appeal, the Court set aside that decree on the ground that the judgment delivered by the learned judge failed to satisfy the basic and legitimate requirements of a judgment under the Code of Civil Procedure. As a result, the appeal was allowed, the decree of the High Court was set aside, and second appeal No 91 of 1955 was remitted back to the Madras High Court with a direction that it be dealt with in accordance with law. The costs of this appeal were ordered to be the costs of the second appeal, and the appeal was allowed.