Special leave under Article 136 is discretionary and not strictly barred by failure to exhaust Letters Patent remedies. Furthermore, a second appellate judgment under Section 100 CPC must contain reasons; a decree passed without reasoning is unsustainable and must be set aside.

Headnote:(A) Constitution of India - Article 136 and 133(3) - Code of Civil Procedure, 1908 - Section 100 - Special leave petition against second appellate decision - Exhaustion of remedy under Letters Patent - Whether special leave can be revoked if a Letters Patent Appeal was not filed - Normally, the remedy of a Letters Patent Appeal should be availed before approaching the Supreme Court under Article 136, particularly in second appellate decisions - However, no inflexible rule exists as the powers conferred under Article 136 are wide, and the decision to exercise jurisdiction depends on the facts of each case (Paras 6, 7).

(B) Code of Civil Procedure, 1908 - Section 100 - Second Appeal - Requirements of a judgment - A judgment in a second appeal must satisfy the basic and legitimate requirements of a judgment under the Code - A decree passed without recording reasons, resembling an arbitrator's award, is unsustainable and must be corrected to ensure the matter is dealt with in accordance with law (Para 9).

Facts of the case:
A suit for mandatory and permanent injunction was filed to remove a masonry structure allegedly encroaching upon a public street. The trial court decreed the suit in favor of the respondents. This was subsequently set aside by the first appellate court. In a second appeal, the High Court passed a decree in favor of the respondents, but the judgment merely stated the terms of the decree without providing any reasoning or analysis of the issues. The appellants then approached the Supreme Court via special leave.

Findings of Court:
The court found that the High Court's judgment was glaringly deficient as it failed to provide reasons for the decree, which is a fundamental requirement for judgments in second appeals under the Code of Civil Procedure.

Issues: Whether the appeal should be dismissed solely on the ground that the appellants did not pursue a Letters Patent Appeal and whether a judgment in a second appeal that lacks reasoning is legally sustainable.

Ratio Decidendi: While the court generally expects the exhaustion of available remedies like a Letters Patent Appeal before granting special leave under Article 136, it is not an absolute or inflexible rule. In cases where the impugned judgment is fundamentally flawed—specifically where a second appellate judgment lacks reasons—the interests of justice require the decree to be set aside and the matter remanded for disposal in accordance with law.

Result: Appeal allowed.

Judgment

GAJENDRAGADKAR, C.J.I. :

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 ABCD in the plan attached to the plaint and for a permanent injunction restraining the appellants from building upon or otherwise encroaching upon 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 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 residents in the locality.

2. The appellants disputed the main allegation of the respondents that the masonry structure to which the respondents had objected, stood on any part of the public street. According to them, the plot on which the masonry structure stood along with the adjoining property belonged to them as 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.

3. The appellants then took the dispute before the Subordinate 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 assessment 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.

4. This decree was challenged by the respondents by preferring a second appeal before the Madras High Court. Basheer Ahmed 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, 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 the learned Judge has proceeded, to sit out the terms of his decree in clauses (1), (2) and (3), the 3rd clause being sub-divided into clauses (a), (b) and (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.

5. Before dealing with this contention, however, it is necessary to refer to a preliminary objection, raised by Mr. Rajagopal 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 n

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