TMI Blog1964 (3) TMI 135X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 2. The appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts 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 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 sustain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been granted, 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 not be interpreted as laying down a general proposition that if special leave is granted 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aised 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 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-establis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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