Rameshwar Prasad & Ors Vs. M/S.
Shyam Beharilal Jagannath & Ors  INSC 131 (3 May 1963)
03/05/1963 DAYAL, RAGHUBAR DAYAL, RAGHUBAR
CITATION: 1963 AIR 1901 1964 SCR (3) 549
F 1966 SC1427 (4,7) D 1971 SC 742 (4) MV 1972
SC1181 (31) R 1973 SC 655 (7) E 1975 SC 733 (30,31) RF 1979 SC1393 (3)
Civil Procedure-Joint decree-Appeal filed
jointly Death of one appellant-Failure to add legal representativesMaintainability
of appeal by surviving appellants-Code of Civil Procedure, 1908 (Act 5 of
1908), O. 22, rr. 2,3, 9,11, O. 41, rr. 4,33.
Nine persons including K instituted a suit
for ejectment and recovery of rent against two defendants and obtained a
decree, but on appeal, the District judge set aside the decree against
defendant No. 2. The plaintiffs then filed a second appeal in the High Court on
February 29, 1952, and while the appeal was pending K died on September 8,
1955. No application for bringing his legal representatives on the record was,
however, made within the prescribed time, and the appeal abated so far as K was
concerned. When the appeal of the appellants other than K came up for hearing
on September 1, 1958, a preliminary objection was taken for the respondents
that the entire appeal had abated on the ground that the interest of the
surviving appellants and the deceased appellant were joint and indivisible and
that in the event of the success of the appeal there would be two inconsistent
and contradictory decrees. The appellants claimed that the appeal was maintainable
on the grounds that the surviving appellants could have filed the appeal
against the entire decree in view of the provisions of O. 41, r. 4, of the Code
of Civil Procedure, that they were, therefore, competent to continue the appeal
even after the death of K and the abatement of the appeal so far as he was
concerned, and that the Court could have reversed or varied the whole decree in
favour of all the original plaintiffs and could have granted relief with respect
to the rights and interests of K as well.
Held (1) that the provisions -of r. 4 of 0.
41 of the Code of Civil Procedure were not applicable, since the second appeal
in the High Court was not filed by anyone or by even some of the plaintiffs as
an appeal against the whole decree, but was filed by all the plaintiffs
jointly, and the surviving appellants could not be said to have filed the
appeal as representing K.
(2) that an appellate court had no power to
proceed with the appeal and to reverse and vary the decree in favour of all the
plaintiffs or defendants under O. 41, r. 4, of the Code of Civil Procedure,
when the decree proceeded on a ground comm. on to all the plaintiffs or
defendants, if all the plaintiffs or the defendants appealed from the decree
and any of them died and the appeal abated so far as he was concerned under O.
22, r. 3.
Ramphal Sahu v. Babu Satdeo Jha, I.L.R. 19
Amin Chand v. Baldeo Sahai Ganga Sahai,
I.L.R. 15 Lah. 667;
Baij Nath v. Ram Bharose, I.L.R. 1953 (2) All.
434; Nanak v. Ahmad Ali, A.I.R. 1946 Lah. 399; Pyarelal v. Sikhar, Chand,
I.L.R. 1957 M.P. 21; Raghu Sutar v. Narusingha Nath, A.I.R.
1959 Orissa 148 ; Venkata Ran Rao v.
Narayana, A. I.R. 1963 A.P. 168 and Sonahar Ali v. Mukbul Ali, A.I.R. 1956
Assam 164, approved.
Shripad Balwant v. Nagu Kusheba, I.L.R. 1943
Satula Bhattachariya v. Asiruddin Shaikh,
I.L.R. 61 Cal. 879 and Somasundaram Chettiar v. Vaithilinga Mudaliar, I.L.R. 40
Mad. 846, disapproved.
(3) that the provisions of O. 41, r. 33 were
'not applicable since the appeal by the surviving appellants was not competent
in the circumstances of the case.
Mohomed KhaleeJ Shirazi & Sons v. Lee
Tanneries 53 I.A. 84, relied on.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 577 of 1961.
Appeal by special leave from the judgment and
decree dated January 7, 1959, of the Allahabad High Court in Second Appeal No.
448 of 1952.
Sarjoo Prasad, Vithal Bhai Patel and S.S.
Shukla, for the appellants.
C. B. Agarwala, and J. P. Goyal, for the
respondent No. I.
1963. May 3: The judgement of the Court was
delivered by RAGHBAR DAYAL J.-The facts leading to this appeal, by special
leave, are these. Nine 551 persons, including Kedar Nath, instituted a suit for
ejectment and recovery of rent against two defendants on the allegation that
defendant No. I was the tenant-inchief who had sub-let the premises to
defendant No. 2. The suit for ejectment was decreed against both the defendants
and for arrears of rent against defendant No. 1. On appeal by defendant No. 2
the District judge set aside the decree for ejectment against defendant No. 2
and confirmed the rest of the decree against defendant No. 1. It is against
this decree that the nine original plaintiffs filed the second appeal in the
High Court on February 29, 1952.
Kedar Nath, appellant No. 3, died on
September 8, 1955.
In view of rr. 3 and 11 of O. XXII of the
Code of Civil Procedure, hereinafter called the Code, the appeal abated so far
as Kedar Nath was concerned as no application for bringing his legal
representatives on the record was made within the prescribed time.
On October 1, 1956, two applications were
filed in the High Court One was an application under s. 5 of the Limitation Act
for the condonation of the delay in filing the application for substitution of
the heirs in placec of Kedar Nath. The other was the application for
substitution in which it was prayed that Bithal Das and Banarsi Das, the sons
of Kedar Nath, deceased, be substituted in place of the deceased appellant as
they were his heirs and representatives. These two applications were dismissed
on May 1, 1957, with the result that the appeal stood abated as against Kedar
Bhagwati Prasad, appellant No. 9 also died on
July 2,1956. His widow, Remeshwari Devi, was brought on the record in his
When the appeals of the appellants other than
Kedar Nath came up for hearing on September 1, 1958, a preliminary objection
was taken for the, 552 respondent that the entire appeal had abated. Mr.
jagdish Swarup, learned counsel appearing for the appellants, contended that
the deceased belonged to a joint Hindu family and other members of the family
were already on the record and that it was not necessary to bring on record any
other person. He further stated that the appeal could not be said to have
abated in the particular circumstances. The Court allowed the appellants time
for filing an affidavit stating that the deceased was a member of the joint
Hindu family and other relevant facts.
On September 8, 1958, an affidavit was filed by
Suraj Prasad Misra pairokar of the appellants. Para 9 of the Affidavit stated
that Lala Ram Chandra Prasad, appellant No. 8, managed the family properties
including the one in dispute which was joint and looked after the affairs of
the properties and acted for and on behalf of the family and was 'already on
the record. A counter-affidavit was filed stating that the allegations in para
9 of the affidavit were misleading, that there was no allegation in the
affidavit that the family was a joint Hindu family and that the true facts were
that the family of the plaintiffs appellants was not a joint family, that the
members were separated, that Lala Ram Chandra Prasad was not karta of the joint
Hindu family, that the plaintiffs were assessed to income-tax separately and
that the property in dispute was not jointfamily property or even joint
property. A rejoinder affidavit was then filed by Sri Narain, general agent of
the appellants stating that the aforesaid statements in the counter affidavit
were misleading and irrelevant and reaffirming that Ram Chandra Prasad managed
the house property of the family including the one in dispute and that he
looked after the affairs of the house property and acted for and on behalf of
the family just as other members of the family looked after other affairs
including the business belonging to the family.
553 At the hearing of the appeal of the
surviving appellants, the only point which was urged for consideration seems to
have been that the surviving appellants were competent to continue the appeal
in view of O.XLI, r. 4, C. P. C. This contention was repelled in view of the
full Bench decision of the Allahabad High Court reported in Baij Nath v. Ram
Bharose (1), as the interests of the surviving appellants and the deceased appellant
were joint and indivisible and as in the event of the success of the appeal
there would be two inconsistent and contradictory decrees.
It accordingly dismissed the appeal. It is
against this decree -that this appeal has been filed after obtaining special
Mr. Sarjoo Prasad, learned counsel for the
appellants, has raised two points. One is that the provision of r. 2 of O. XXII
and not of r. 3 of that Order apply to the facts of this case as the nine
appellants constitute a joint Hindu family and the surviving plaintiffs could
continue the appeal. The second point is that if the provisions of r. 3 of
O.XXII applied and the appeal of Kedar Nath had abated, the provisions of r. 4
of O.XLI have not been correctly construed in Baij Nath v. Ram Bharose (1) and
Ramphal Sahu v. Babu Satdeo Jha (2).
We see no force in the first contention. We
have already referred to the contents of the various affidavits filed by the
parties subsequent to the point being raised that Kedar Nath, the deceased
appellant and the surviving appellants constituted a joint Hindu family. They
clearly indicate that the affidavits filed on behalf of the appellants made no
averment that Kedar Nath and the surviving appellants formed a joint Hindu
family, even though time had been given to them for filing an affidavit stating
such a fact. The inference is obvious, and (1) I.L.R. [1953) All, 434, (2)
I.L.R. 19 Pat, 870, 554 is that these people did not form a joint Hindu family
as alleged by the respondents.
It is further of significance that the
application made on October 1, 1956, for substituting the sons of Kedar Nath in
his place stated that they were his heirs and legal representatives. The
application was on the basis that Kedar Nath was not a member of the joint
Hindu family. We are, therefore, of opinion that it is not proved that Kedar
Nath, deceased, and the other appellants constituted a joint Hindu family that
the right to appeal survived to the surviving appellants alone and that they
could have continued their appeal in view of r. 2 of XXII of the Code.
The second contention really is that the
surviving appellants could have instituted the appeal against the entire decree
in view of the provisions of O. XLI, r. 4 of the Code, that they were,
therefore, competent to continue the appeal even after the death of Kedar Nath
and the abatement of the appeal so far as he was concerned, that the Court
could have reversed or varied the whole decree in favour of all the original
plaintiffs and could have granted relief'with respect to the rights and
interests of Kedar Nath as well. We do not agree with this contention Rule 4 of
"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 the favour of all the
plaintiffs or defendants, as the case may be." These provisions enable one
of the plaintiffs or one of the defendants to file an appeal against the entire
555 decree. The second appeal filed in the High Court was not filed by any one
or by even some of the plaintiffs as an appeal against the whole decree, but
was filed by all the plaintiffs jointly, and, therefore, was not an appeal to
which the provisions of r. 4 O.XLI could apply.
The appeal could not have been taken to be an
appeal filed by some of the plaintiffs against the whole decree in pursuance of
the provisions of r. 4 of O.XLI from the date when the appeal abated so far as
Kedar Nath was concerned.
If the appeal could be treated to have been
so filed, then, it would have been filed beyond the period prescribed for the
appeal. At that time, the decree stood against the surviving plaintiffs and the
legal representatives of Kedar Nath. The legal representatives could not have
taken advantage of r. 4 of O. XLI. It follows that r. 4 of O. XLI would not be
available to the surviving plaintiffs at that time.
Further, the principle behind the provisions
of r. 4 seems to be that any one of the plaintiffs or defendants, in filing
such an. appeal, represents all the other nonappealing plaintiffs or defendants
as he wants the reversal or modification of the decree in favour of them as
well, in view of the fact that the original decree proceeded on a ground common
to all of them. Kedar Nath was alive when the appeal was filed and was actually
one of the appellants.
The surviving appellants cannot be said to
have filed the appeal as representing Kedar Nath.
Kedar Nath's appeal has abated and the decree
in favour of the respondents has become final against his legal
representatives. His legal representatives cannot eject the defendants from the
premises in suit. It will be against the scheme of the Code to hold that r. 4
of O. XLI empowered the Court to pass a decree in favour of the legal
representatives of the 556 deceased Kedar Nath on hearing an appeal by the
surviving appellants even though the decree against him has become final. This
Court said in State' of Punjab v. Nathu Ram(1).
"The abatement of an appeal means not
only that the decree between the appellant and the deceased respondent had
become final, but also, as a necessary corollary, that the appellate Court
cannot, in any way, modify that decree directly or indirectly. The reason is
plain. It is that in the absence of the legal representatives of the deceased
respondent, the appellate Court cannot determine anything between the appellant
and the legal representatives which may affect the rights of the legal
representatives under the decree. It is immaterial that the modification which
the Court will do is one to which exception can or cannot be taken." No
question of the Provisions of r. 4 of O.XLI overriding the provisions of r. 9
of O. XXII arises. The two deal with different stages of the appeal and provide
for different contingencies. Rule 4 of 0 XLI applies to the stage when an
appeal is filed and empowers one of the plaintiffs or defendants to file an
appeal against the entire decree in certain circumstances. He can take
advantage of this provision, but he may not. Once an appeal has been filed by
all the plaintiffs the provisions of 0 XLI, r. 4 became unavailable. Order XXII
operates during the pendency of an appeal and not at its institution. If some
party dies during the' pendency of the appeal, his legal representatives have
to be brought on the record within the period of limitation. If that is not
done, the appeal by the deceased appellant abates and does not proceed any
further. There is thus no inconsistency between the previsions of r. 9 of O.
XXII and those of r. 4 of O~. XLI, C.P.C. They operate at different stages and
provide for (1)  -2 S.C. R. 636 557 different contingencies. There is
nothing common in their provisions which make the provisions of one interfere
in any way with those of the other.
We do not consider it necessary to discuss
the cases referred to at the hearing. Suffice it to say that the majority of the
High Courts have taken the correct view viz., that the appellate Court has no
power to proceed with the appeal and to reverse and vary the decree in favour
of all the plaintiffs or defendants under O. XLI, r. 4 when the decree proceeds
on a ground common to all the plaintiffs or defendants, if all the plaintiffs
or the defendants appeal from the decree and any of them dies and the appeal
abates so far as he is concerned under O.XXII, r. 3. See : Ramphal Sahu v. Babu
Satdeo Jha (1); Amin Chand v. Baldeo Sahai Ganga Sahai(2), Baij Nath v. Ram
Bharose (3); Nanak v. Ahmad Ali (4); Pyarelal v. Sikhar Chand (5); Raghu Sutar
Nrusingha Nath (6); Venkata Ram Rao v.
Narayana (7); Sonahar Ali v. Mukbul Ali (8). The Bombay,, Calcutta and Madras
High Courts have taken a differentview : see Shripad Balwant v. Nagu
KushebaSatulal Bhattachariya v. Asiruddin ShaikhSomasundaram Chettiar v.
Vaithilinga Mudaliar OrderXLI, r. 33 is of no greater help to the contention of
the appellants that their appeal could continue even though the appeal by Kedar
Nath had abated, as the Court could have passed a decree in favour of the
rights and interests of Kedar Nath, deceased, as well. This rule reads :
"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,
an( this power may be exercised by the Court notwithstanding that the (1)
I.L.R.  2 All. 434. (2) I.L.R. 15 Lah.667 (3) I.L.R.  2 All. 434
(4) I.L.R. 1946LAH. 399 (5) I.L.R. M.P. 21. (6) A.I.R. 1959 Orissa 148.
(7) A.I.R. 1963 A.P. 168 (8) A I.R. 1956
(9) I.R.R. 1943 BOM. 143 (10) I.L.R. 61 CAL.
879 (11) I.L.R. 40 MAD. 846 558 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 :
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." This rule is under the sub-heading 'judgment in appeal'.
Rule 31 provides that the judgment of the
Appellate Court shall be in writing and shall state inter alia the relief to
which the appellant is entitled in case the decree appealed from is reversed or
varied. Rule 32 provides as to what the judgment may direct and states that the
judgment may be for confirming, varying or reversing the decree from which the
appeal is preferred, or, if the parties to the appeal agree as to the form
which the decree in appeal shall take, or as to the order to be made in appeal,
the Appellate Court may pass a decree or make an order accordingly. The reversal
or variation in the decree would, therefore, be in accordance with what the
appellant had been found to be entitled. The decree therefore, is not to be
reversed or varied with respect to such rights to which the appellant is not
found entitled. Rule 33 really provides as to what the Appellate Court can find
the appellant entitled to. It empowers the Appellate Court to pass any decree
and make any order which ought to have been passed or made in the proceedings
before it and -thus could have reference only to the nature of the decree or
Order in so far as it affects the rights of the appellant. It further empowers
the Appellate Court to pass or make such further or other decree or Order as
the case may require. The Court is thus given wide discretion to pass such
decrees and Orders as 559 the interests of justice demand. Such a power is to
be exercised in exceptional cases when its non-exercise will lead to
difficulties in the adjustment of rights of the various parties. A case like
the present is not a case of such a kind.
When the legal representatives of the
deceased appellant and the surviving appellants were negligent in not taking
steps for substitution, the Court is not to exercise its discretion in favour
of such a party. The discretionary power cannot be exercised to nullify the
effect of the abatement of the appeal so far as Kedar Nath is concerned.
In fact such an exercise of power will lead
to the existence of two contradictory decrees between the heirs of Kedar Nath
and the respondents, one passed by the appellate Court and another to the
contrary effect by the Court below which has attained finality consequent on
the abatement of the appeal in so far as they are concerned. This is always
Rule 33 deals with a matter different from
the matter dealt with by r. 9 of O. XXII and no question of its provisions
overriding those of r. 9 of O. XXII or vice versa arises.
In Mahomed Khaleel Shirazi & Sons v. Los
Panneries Lyonnaises (1) it was held that O. XLI, r. 33 was not intended to
apply to an appeal which was not a competent appeal against a party under the
Code or under the Letters Patent 'of the High Court. This principle applies
with equal force in the present case. The appeal by the surviving appellants is
not competent in the circumstances of the case and, therefore, the provisions
of 0. XLI, r. 33 are not applicable to it.
We are, therefore, of opinion that the High
Court could not have heard the appeal of the surviving appellants when the
appeal by kedar Nath had (1) 53 I.A 84 560 abated as all the appellants had a
common right and interest in getting a decree of ejectment against defendant
No. 2 and such decree could have been on a ground common to all of them. The
defendant cannot be ejected from the premises when he has a right to remain in
occupation of the premises on the basis of the decree holding that Kedar Nath,
one of the persons having a joint interest in letting out the property could
not have ejected him. It is not possible for the defendant to continue as
tenant of one of the landlords and not as a tenant of the others when all of
them had a joint right to eject him or to have him as their tenant.
We, therefore, dismiss the appeal with costs.