Decided on October 23,1960

PRABHATI Appellant
CHITTAR Respondents


- (1.)Through this petition is being sought the review of a judgment and decree passed by myself and Shri J.N. Kunzru, I. A. S., retired since on 17.9.59, in the second appeal No. 21/ Alwar/1958 Chhitar and Natha Vs. Prabhati. The material facts in brief are that the petitioner Prabhati sued the respondents Chhitar and Natha along with two others, Pancha and Sultan, party neither in this review proceeding nor in the second appeal before us, for ejectment as trespassers from the disputed land. The trial court dismissed the suit. The first appellate court, however, decreed it. As second appellate court, we restored the decree of the trial court. The suit of the petitioner was thus dismissed, and on an appeal by only two out of the four defendants, the other two not having been impleaded even as respondents in the second appeal.
(2.)We have heard the learned counsel for the parties and examined the record also carefully. A number of grounds have been urged by Shri Pareek on behalf of the petitioner as dealt with below): - -
(3.)The foremost point urged is that an important and positive rule of law has been ignored by us and an error apparent on the face of record committed in as much as we have set aside the decree against all the four defendants contrary to the provisions of O. 41 R. 33 C.P.C. without first impleading in terms of R. 20 thereof the non -appealing two defendants as respondents. On being put up a querry as to why the case be not taken to have been governed by the provisions of R. 4 of O. 41, the learned counsel does concede that the case is governed by R. 4 and R. 33. He, however, still contends that the two defendants must have been imploded as party before deciding the appeal under R. 4 too. He does concede that the decree passed by the first appellate court proceeded on grounds common to all the four defendants and therefore any one or two of them could have preferred the second appeal as provided by the R. 4. But he does not concede that their appeal could have entertained and decided even without impleading the other two defendants. His argument is that RR. 4, 20 and 33 of O. 41 C.P.C. went to constitute a composite Rule ; and therefore no appeal could be entertained and decided unless all the parties to the suit were impleaded as party to the appeal too. 1 have given careful consideration to this contention. The more I have considered the more I am convinced, of the untenability thereof. R. 4 not only deals with a contingency entirely different from the one contemplated by R. 33 but also bestows on the appellate court powers much less restricted. The latter R. 3 3 enables an appellate court to pass any decree required in the circumstances of the case even though the appeal preferred might be regarding a part only and to exercise such a power not only in favour of a party or respondent not filling the appeal or cross -objection but also by implication against any other party to the suit. Whereas R. 4 only enables any of the plaintiffs or defendants, in case the decree appealed from proceeds on any ground common to all them to prefer the appeal, and the court to vary or reverse the decree in favour of all of such plaintiffs or defendants as the case may be, but not against any of them. There is nothing in R. 4 to suggest that all such plaintiffs or defendants must be made a party to the appeal, which is implied in the language of R. 33 or "This power (of awarding a decree appropriate to the requirements of the case) may be exercised in favour of all or any of the respondent or parties, although such respondents or parties may not have filed any appeal or objection, to enable the decree being passed against any of them, it is the most soundly established principle of law that no decree can be passed against any person without letting him have an opportunity of showing cause against it. For this reason simpliciter, if not for any one else, every such party as against which a decree is sought to be passed most be made a party to the appeal also. In case, however, no such decree against a party is intended to be passed, but only one in favour is being passed, it can be done even without such a party being impleaded in appeal. But as Rule 4 does not enable the passing of any such decree against any party but on the other hand enables only the varying or reversing of the decree proceeding on a ground common to all of them in favour of all the plaintiffs or defendants as the case may be, on an appeal by any one of them "there is no necessity of making all the plaintiffs or defendants, as the case may be, a party to an appeal governed by it. The provisions of Rule 20 also do not alter the above proposition. They are meant only to bestow powers on the appellate court to adjourn the hearing of an appeal and to direct the addition of a party to the suit, not made a party to the appeal but interested in the result thereof as a respondent. This does not go in any way to circumvent the powers of the appellate court to vary or reverse the decree in the circumstances and in the manner described in Rule 4, or Rule 33. It does not anyhow take away the powers of the appellate court to reverse the decree in favour of all the defendants on an appeal preferred by only two of them when the decree appealed from admittedly proceeds on a ground common to all of them. AIR 1934 Oudh 496 Ram Raj Jewari Vs. Ram Oudh and others, relied upon by Shri Pareek too lends support to this very view and not to the one advanced by him, when it says "Order 41 Rule 4 merely authorises the appellate courts to reverse or vary the decree in favour of all the plaintiffs or defendants as the case may be. It does not authorise the appellate court to reverse or vary the decree of the trial court to the detriment of the plaintiffs or defendants. Order 41 Rule 20 gives powers to appellate court to adjourn the hearing of an appeal, and to direct that such person as may appear to it to be interested in the decision of the appeal be made respondents in the appeal." Nor does A.I.R. (33)1946 Lahore 399 (Full Bench) Nanak Vs. Ahmad All cited by Shri Pareek lend support to this contention. For the facts of the case were quite different from those of the present one inasmuchas one of the appellants (being two out of the 3 defendants in the suit) was found to have already died when the appeal came up for hearing and the point that arose was whether the appeal could proceed, and not abate, in terms of Order 41 Rule 4 C. P. C. The decree against the two defendants appealed from was also found to be quite separable. The point of decree proceeding on grounds common to all the defendants was also neither mooted nor discussed nor decided. It was in view of all these circumstances and the existence of similar decisions under similar circumstances that led the learned judges to rule out the applicability of Order 41 Rule 4 C. P. C. to that case. As against this there is a decision of the Full Bench of the Patna High Court, Mt. Parwati Kaur Vs. Mannalal, A. I. R. 1956 Patna 414, which lends support to the view taken by me. It lays down, "If order 41 Rule 4 and order 41 Rule 31 are read together, there can be no doubt that one of the defendants can file an appeal without impleading the other defendants as respondents, and the appeal proceeds on a ground common to all the defendants the appellate court may exercise the power of varying the decree in favour of the non -appealing defendants, though they have not been parties to the appeal. The effect of these two rules is that the appellate court is authorised to pass a decree in favour of a party who has not been heard, but the appellate Court is not authorised to pass a decree against a person who is not a party to the appeal. Thus the appellate court has power, under the provisions of order 41 Rule 4 read with Order 41 Rule 33 to vary or reverse the mortgage decree granted by the lower court in favour of a defendant who is not impleaded either as a party appellant or a party respondent, and whose name is ordered to be expunged from the memorandum of appeal on account of a technical defect. There is no question of abatement in such a case."

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