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2018 DIGILAW 1564 (HP)

Gulab Singh v. Balbir Singh

2018-08-27

TARLOK SINGH CHAUHAN

body2018
JUDGMENT : Tarlok Singh Chauhan, J. Where in a case there are more than one defendants, who are equally aggrieved by a decree on a ground common to all of them and only one of them challenges the decree by filing first appeal in his own right and the other defendants do not choose to challenge the decree by filing first appeal, then whether such defendants can maintain the second appeal or their right to challenge the decree is lost, is the question which arises for consideration in this appeal? 2. However, before answering the question, certain minimal facts need to be noticed. The plaintiff/respondent filed a suit for declaration and injunction against the defendants/appellants which was decreed by the learned trial Court. Only, the co-defendant Rameshwar Singh assailed the decree by filing first appeal, however, the same too met with the same fate vide judgment and decree passed by the learned first appellate Court on 31.03.2018. 3. Aggrieved by the judgment and decree passed by the learned first appellate Court, the defendant Rameshwar Singh has filed a separate appeal being RSA No.215 of 2018, whereas, the defendants/appellants, who had not preferred any appeal against the judgment and decree passed by the learned trial Court, have now preferred RSA No. 286 of 2018. 4. This Court on 08.08.2018 passed the following order:- ”Admittedly, the appellants herein, had not preferred any appeal against the judgment and decree passed by the learned trial Court, even though, a part thereof was against the appellants. It is only the appellant in RSA No.215 of 2018, who aggrieved by the judgment and decree of the learned trial Court had alone preferred an appeal before the learned first appellate Court. Therefore, the learned counsel for the appellants to justify the maintainability of this appeal. List on 20.08.2018.” 5. Before proceeding any further, certain provisions of the Code of Civil Procedure need to be noticed:- 6. Order 41 Rule 4 CPC reads thus:- “4. Therefore, the learned counsel for the appellants to justify the maintainability of this appeal. List on 20.08.2018.” 5. Before proceeding any further, certain provisions of the Code of Civil Procedure need to be noticed:- 6. Order 41 Rule 4 CPC reads thus:- “4. One of several plaintiffs or defendants may obtain reversal of whole decree where it proceeds on ground common to all Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be.” 7. Likewise Order 41 Rule 4, Rule 33 needs to be noticed and is reproduced as under:- “33. Power of Court of Appeal The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection, 1[and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees]: PROVIDED that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.” 8. The Hon'ble Supreme Court in Karam Singh Sobti versus Pratap Chand, (1964) 4 SCR 647 , was dealing with a proceeding under the Delhi Rent Control Act for eviction that had been filed against the tenant and sub-tenant on the ground that the tenant had, without the consent of the landlord, sublet, assigned or otherwise parted with the rented premises. The Hon'ble Supreme Court in Karam Singh Sobti versus Pratap Chand, (1964) 4 SCR 647 , was dealing with a proceeding under the Delhi Rent Control Act for eviction that had been filed against the tenant and sub-tenant on the ground that the tenant had, without the consent of the landlord, sublet, assigned or otherwise parted with the rented premises. One decree of eviction was passed by the trial judge against both tenant and sub-tenant who were defendants. Both the defendants were aggrieved by the decree of eviction and each had his own right to appeal from that decree. While the tenant failed to move an appeal, the sub-tenant filed an appeal against the decree. It was held that there was one decree and therefore the appellant was entitled to have it set aside "although thereby the tenant who had not appealed would also be freed from the decree". It was open to the sub-tenant to contend that the decree was wrong as it was passed on an erroneous finding and the sub- tenant could challenge the decree on any available ground. Thus, it was held that the appeal of one of the defendants was competent, even though the other defendant who was equally situated had filed no appeal. 9. In Ratan Lal Shah versus Firm Lalmandas Chhadammalal and Anr., (1969) 2 SCC 70 , the Hon'ble Supreme Court had occasion to examine the scope of application of Order 41 Rule 4 of the CPC. In that case there was a joint decree against two defendants R & M. R alone appealed to the High Court by impleading M as second respondent in the appeal. M was not served with notice as a result of which the appeal came to an end as far as M was concerned. The High Court dismissed the appeal on the ground that the decree was joint against both R & M, in a suit on a joint cause of action, the decree against M having become final, R could not be heard alone in the appeal. The Hon'ble Supreme Court reversed the judgment of the High Court by taking the view that the appeal could not be dismissed on the ground that M was not served, nor could the appeal be dismissed on the ground that there was a possibility of two conflicting decrees. The Hon'ble Supreme Court reversed the judgment of the High Court by taking the view that the appeal could not be dismissed on the ground that M was not served, nor could the appeal be dismissed on the ground that there was a possibility of two conflicting decrees. Delineating the provisions of Order 41 Rule 4 of the CPC, the Hon'ble Supreme Court said : (SCC p.72, para 3): "The object of the rule is to enable one of the parties to a suit to obtain relief in appeal when the decree appealed from proceeds on a ground common to him and others. The court in such an appeal may reverse or vary the decree in favour of all the parties who are in the same interest as the appellant." 10. The Hon'ble Supreme Court reiterated its view in Karam Singh Sobti (supra) and held that even if it be assumed that R was negligent, on that ground he could not be deprived of his legal right to prosecute the appeal and to claim relief under Order 41 Rule 4 of the Code of Civil Procedure, if the circumstances of the case warrant it. The decree of the Trial Court proceeded on a ground common to M and R. In the appeal filed by R, he was denying liability for the claim of the plaintiffs in its entirety. Thus, it was held that this was essentially a case in which the Court's jurisdiction under Order 41, Rule 4, Code of Civil Procedure could be exercised. 11. This view was reiterated by the Hon'ble Supreme Court in Mahabir Prasad versus Jage Ram and Ors., (1971) 1 SCC 265 . It was a case in which the plaintiff Mahabir Prasad, his mother and his wife obtained a decree against the defendant Jage Ram and two others for a certain amount. Their application for execution was dismissed by executing court. Mahabir Prasad alone preferred an appeal to the High Court and impleaded his mother Gunwanti Devi, and his wife Saroj Devi as party-respondents. Saroj Devi died and the legal representatives were not brought on record within the period of limitation and her name was struck off from the array of respondents. The High Court dismissed the appeal on the ground that it abated in its entirety. Mahabir Prasad appealed to the Hon'ble Supreme Court. Saroj Devi died and the legal representatives were not brought on record within the period of limitation and her name was struck off from the array of respondents. The High Court dismissed the appeal on the ground that it abated in its entirety. Mahabir Prasad appealed to the Hon'ble Supreme Court. Allowing the appeal it was held by the Hon'ble Supreme Court : (vide SCC p. 267, para 4): "Order 41 Rule 4, Code of Civil Procedure, invests the Appellate Court with power to reverse or vary the decree in favour of all the plaintiffs or defendants even though they had not joined in the appeal if the decree proceeds upon a ground common to all the plaintiffs or defendants.” 12. The Hon'ble Supreme Court in Mahabir Prasad (supra) distinguished the judgment in Rameshwar Prasad versus Shambehari Lal Jagannath, 1964 3 SCR 549 as a case in which all the plaintiffs whose suits had been dismissed had filed an appeal and thereafter one of them being dead and his heirs were not brought on record. While in the case before the Hon'ble Supreme Court, there was an order against all the decree holders but all of them had not appealed. The previous judgment in Ratanlal Shah (supra) was followed approvingly. Commenting on the judgment in Ratanlal Shah (supra) in the light of Order 41 Rule 4 of the CPC, the Hon'ble Supreme Court observed: (vide SCC pp. 268-69, para 6): "Competence of the Appellate Court to pass a decree appropriate to the nature of the dispute in an appeal filed by one of several persons against whom a decree is made on a ground which is common to him and others is not lost merely because of the person who was jointly interested in the claim has been made a party-respondent and on his death his heirs have not been brought on the record. Power of the Appellate Court under Order 41 Rule 4, to vary or modify the decree of a Subordinate Court arises when one of the persons out of many against whom a decree or an order had been made on a ground which was common to him and others has appealed. Power of the Appellate Court under Order 41 Rule 4, to vary or modify the decree of a Subordinate Court arises when one of the persons out of many against whom a decree or an order had been made on a ground which was common to him and others has appealed. That power may be exercised when other persons who were parties to the proceeding before the Subordinate Court and against whom a decree proceeded on a ground which was common to the appellant and to those other persons are either not impleaded as parties to the appeal or are impleaded as respondents." 13. The same principle was reiterated in Govindan versus Subramaniam, (2000) 9 SCC 510 , where it was held that Order 41 Rule 4 of the CPC would apply in such a case. 14. In Harihar Prasad Singh versus Balmiki Prasad Singh (1975) 1 SCC 212 , a similar contention was urged. After analysing Ratan Lal, Karam Singh and Mahabir Prasad (supra) and distinguishing the judgments in State of Punjab versus Nathu Ram (1962) 2 SCR 636 and Rameshwar Prasad (supra), it was held that normally Order 41 Rule 4 would apply to a situation like the one before us. 15. This principle has also been reiterated in the Judgment in Banarsi and others versus Ram Phal, (2003) 9 SCC 606 , which holds that Order 41 Rule 4 and Rule 33 are to be read together. The Hon'ble Supreme Court observed (vide SCC p. 619, para 15): "15. Rule 4 seeks to achieve one of the several objects sought to be achieved by Rule 33, that is, avoiding a situation of conflicting decrees coming into existence in the same suit. The abovesaid provisions confer power of the widest amplitude on the appellate court so as to do complete justice between the parties and such power is unfettered by consideration of facts like what is the subject-matter of the appeal, who has filed the appeal and whether the appeal is being dismissed, allowed or disposed of by modifying the judgment appealed against. While dismissing an appeal and though confirming the impugned decree, the appellate court may still direct passing of such decree or making of such order which ought to have been passed or made by the court below in accordance with the findings of fact and law arrived at by the court below and which it would have done had it been conscious of the error committed by it and noticed by the appellate court. While allowing the appeal or otherwise interfering with the decree or order appealed against, the appellate court may pass or make such further or other, decree or order, as the case would require being done, consistently with the findings arrived at by the appellate court. The object sought to be achieved by conferment of such power on the appellate court is to avoid inconsistency, inequity, inequality in reliefs granted to similarly placed parties and unworkable decree or order coming into existence. The overriding consideration is achieving the ends of justice. Wider the power, higher the need for caution and care while exercising the power. Usually the power under Rule 33 is exercised when the portion of the decree appealed against or the portion of the decree held liable to be set aside or interfered by the appellate court is so inseparably connected with the portion not appealed against or left untouched that for the reason of the latter portion being left untouched either injustice would result or inconsistent decrees would follow. The power is subject to at lest three limitations: firstly, the power cannot be exercised to the prejudice or disadvantage of a person not a party before the court; secondly, a claim given up or lost cannot be revived; and thirdly, such part of the decree which essentially ought to have been appealed against or objected to by a party and which that party has permitted to achieve a finality cannot be reversed to the advantage of such party. A case where there are two reliefs prayed for and one is refused while the other one is granted and the former is not inseparably connected with or necessarily depending on the other, in an appeal against the latter, the former cannot be granted in favour of the respondent by the appellate court exercising power under Rule 33 of Order 41." 16. This judgment considers the observations made in Panna Lal versus State of Bombay, (1964) 1 SCR 980 , Harihar Prasad Singh (supra) and Nirmala Bala Ghose versus Balai Chand Ghose (1965) 3 SCR 550 , and holds that Order 41 Rule 4 of the CPC would take care of a situation as the one before us. 17. In Chandramohan Ramchandra Patil and others versus Bapu Koyappa Patil (dead) through LRS and Ors., (2003) 3 SCC 552 , a suit for partition was filed in which the right of partition was recognised and upheld by the Court. In the opinion of the Court, the fact that one of the plaintiffs had appealed, and not all, did not render the appellate court powerless for it could invoke the provisions of Order 41 Rule 4 read with Order 41 Rule 33 of the CPC. It was held that the object of Order 41 Rule 4 is to enable one of the parties to a suit to obtain relief in appeal when the decree appealed from proceeds on a ground common to him and others. The Court in such an appeal may vary the decree in favour of all the parties who are in the same interest as the appellant. The Hon'ble Supreme Court observed (vide SCC pp. 558-59,paras 14-15): "14. Order 41 Rule 4 of the Code enables reversal of the decree by the court in appeal at the instance of one or some of the plaintiffs appealing and it can do so in favour of even non-appealing plaintiffs. As a necessary consequence such reversal of the decree can be against the interest of the defendants vis-a-vis non-appealing plaintiffs. Order 41 Rule 4 has to be read with Order 41 Rule 33. Order 41 Rule 33 empowers the appellate court to do complete justice between the parties by passing such order or decree which ought to have been passed or made although not all the parties affected by the decree had appealed. 15. In our opinion, therefore, the appellate court by invoking Order 41 Rule 4 read with Order 41 Rule 33 of the Code could grant relief even to the non- appealing plaintiffs and make an adverse order against all the defendants and in favour of all the plaintiffs. 15. In our opinion, therefore, the appellate court by invoking Order 41 Rule 4 read with Order 41 Rule 33 of the Code could grant relief even to the non- appealing plaintiffs and make an adverse order against all the defendants and in favour of all the plaintiffs. In such a situation, it is not open to urge on behalf of the defendants that the decree of dismissal of suit passed by the trial court had become final inter se between the non- appealing plaintiffs and the defendants." 18. In K. Muthuswami Gounder versus N. Palaniappa Gounder, (1998) 7 SCC 327 , dealing with the powers of the appellate court under Order 41 Rule 33 of the CPC, the Hon'ble Supreme Court observed (vide SCC p. 333, para 12): "12. Order 41 Rule 33 enables the appellate court to pass any decree or order which ought to have been made and to make such further order or decree as the case may be in favour of all or any of the parties even though (i) the appeal is as to part only of the decree; and (ii) such party or parties may not have filed an appeal. The necessary condition for exercising the power under the Rule is that the parties to the proceeding are before the court and the question raised properly arises (sic out of) one of the judgments of the lower court and in that event, the appellate court could consider any objection to any part of the order or decree of the court and set it right. We are fortified in this view by the decision of this Court in Mahant Dhangir versus Madan Mohan, [1987] Supp. SCC 528. No hard and fast rule can be laid down as to the circumstances under which the power can be exercised under Order 41 Rule 33 CPC and each case must depend upon its own facts. The Rule enables the appellate court to pass any order/ decree which ought to have been passed. The general principle is that a decree is binding on the parties to it until it is set aside in appropriate proceedings. Ordinarily the appellate court must not vary or reverse a decree/order in favour of a party who has not preferred any appeal and this Rule holds good notwithstanding Order 41 Rule 33 CPC. The general principle is that a decree is binding on the parties to it until it is set aside in appropriate proceedings. Ordinarily the appellate court must not vary or reverse a decree/order in favour of a party who has not preferred any appeal and this Rule holds good notwithstanding Order 41 Rule 33 CPC. However, in exceptional cases, the Rule enables the appellate court to pass such decree or order as ought to have been passed even if such decree would be in favour of parties who have not filed any appeal." 19. In Panna Lal versus State of Bombay and Ors., (1964) 1 SCR 980 , the Hon'ble Supreme Court said (vide SCR page 987: AIR p. 1519, para 12): "12. Even a bare reading of Order 41 rule 33 is sufficient to convince any one that the wide wording was intended to empower the appellate court to make whatever order it thinks fit, not only as between the appellant and the respondent but also as between a respondent and a respondent. It empowers the appellate court not only to give or refuse relief to the appellant by allowing or dismissing the appeal but also to give such other relief to any of the respondent as 'the case may require'." 20. Similar reiteration of law can be found in three Hon'ble Judges' Bench decision of the Hon'ble Supreme Court in Bajranglal Shivchandrai Ruia versus Shashikant N. Ruia and others, (2004) 5 SCC 272 . 21. Thus, what can be deduced from the aforesaid exposition of law is that the question as posed before this Court is in fact no longer res integra as it has been conclusively held that in a case where there are more one defendants, who are equally aggrieved by a decree on a ground common to all of them and despite that one of the defendants challenged the decree in his own right by filing first appeal against the judgment and decree of the learned trial Court and the other defendants do not challenge the decree by filing first appeal, even then such defendants can maintain the second appeal. The mere fact that such defendants were negligent would not be a ground to deprive him or them, as the case may be, of his/their legal right to prosecute the appeal and to claim relief under Order 41 Rule 4 CPC coupled with the provisions of Rule 33 of Order 41 CPC. After all, the object of Order 41 Rule 4 CPC is to enable one of the parties to a suit to obtain relief in appeal when the decree appealed from proceeds on a ground common to appearing party and other similarly situated parties. 22. Obviously, in view of the aforesaid discussion, the right to challenge the decree by such of the defendants, who have not filed the first appeal against the judgment and decree passed against them by the learned trial Court, is not lost and consequently the regular second appeal filed at their instance is maintainable. 23. The question is accordingly answered by holding the appeal to be maintainable. 24. List this appeal along with RSA No.215 of 2018 on 10-09-2018.