Case: Penu Balakrishna Iyer And Ors Vs. Sri Ariya M. Ramaswami Iyer And Ors

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.7. 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. 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 case it is necessary that the remedy 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.8. 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 fact. If at the stage when special leave is granted, the respondent aveator appears and resists the grant of special leave on the ground that the appellant has not moved for Letters Patent Appeal and it appears that the said ground is argued and rejected on the merits and consequently special leaveis 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 decision on the point will depend upon a proper consideration of all the relevant facts.9. Reverting then to the main point raised by the appellants in this appeal we do not think we would be justified in refusing to deal with the merits of the appeal solely on the ground 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 glarning 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 Court 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, 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 he 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]7. 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. 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 case it is necessary that the remedy 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 fact. If at the stage when special leave is granted, the respondent aveator appears and resists the grant of special leave on the ground that the appellant has not moved for Letters Patent Appeal and it appears that the said ground is argued and rejected on the merits and consequently special leaveis 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 decision on the point will depend upon a proper consideration of all the relevant facts.9. Reverting then to the main point raised by the appellants in this appeal we do not think we would be justified in refusing to deal with the merits of the appeal solely on the ground 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 glarning 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 Court 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, 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 he 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 theCode of Civil Procedure.