Ratan Lal Shah Vs. Firm Lalmandas
Chhadammalal & ANR  INSC 114 (15 April 1969)
15/04/1969 SHAH, J.C.
CITATION: 1970 AIR 108 1970 SCR (1) 296 1969
SCC (2) 70
CITATOR INFO :
D 1971 SC 742 (5) RF 1975 SC 733 (30,34)
Civil Procedure Code, 1908 Order 41 Rule
4-Joint decree' against two persons-Appeal by only one person-Whether appeal
court can exercise jurisdiction under O. 41 r. 4.
The respondent obtained a joint decree
against the appellant and his partner M. Against the decree, the appellant
alone appealed to the High Court. M was impleaded as the 'second respondent in
the appeal. The notice of appeal sent to M was returned unserved. The High
Court dismissed the appeal on the view that since there was a joint decree
against the appellant and M in a suit founded on a joint cause of action and
the decree against M had become final, the appellant could not claim to be
heard on his appeal; if he was heard there could be two conflicting decisions
between the same parties and in the same suit based on the same cause of
action. The High Court also held that the appellant had not taken steps to
serve M and the appeal must be dismissed for want of prosecution.
On appeal to this Court
HELD : The judgment of the High Court could
not be sustained.
The appeal could not be dismissed on the
ground that M was not served with the notice of appeal, nor, in view of the
provisions of Order 41 Rule 4, could the High Court dismiss the appeal on the
ground that there was a possibility of two conflicting decrees. [297 G-H] 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. [298B] Karam
Singh Sobti and Anr. v. Shri Pratap Chand and Anr.
(1964) 4 S.C.R. 647, explained and followed.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1019 of 1966.
Appeal by special leave from the judgment and
decree dated July 10, 1963 of the Allahabad High Court in First Appeal No. 16
C. B. Agarwala and K. P. Gupta, for the
B. C. Misra, O. P. Gupta, Ram Parkash Agarwal
and Sultan Singh, for respondent No. 1.
The Judgment of the Court was delivered by
Shah, J. Firm Lalmandas Chhadammalal-hereinafter called 'the
plaintiffs'--commenced an action against "Mohan Singh Ratan Lal, through
its partners Mohan Singh and Ratan Lal", in.
the 297 Court of the Senior Civil Judge,
Nainital, for a decree for Rs. 12,883/and interest thereon for value of goods
supplied. Ratan Lal denied liability for payment of the amount claimed. Mohan
Singh by a separate written statement admitted that goods were supplied by the
plaintiffs to the firm, but submitted that he was liable only for one-fifth of
the amount claimed. The Trial Judge decreed the claim of the plaintiffs in its
entirety against "Mohan Singh and Ratan Lal and the firm known as Mohan
Singh Ratan Lal".
Against the decree, Ratan Lal alone appealed
to the High Court of Allahabad. Mohan Singh was impleaded as the second
respondent in the appeal. The notice of appeal sent to Mohan Singh was returned
unserved and an application made by counsel for the appellant to serve Mohan
Singh "in the ordinary course as well as by registered post" was not
disposed of by the Court. On July 9, 1963 Ratan Lal applied that it was
"detected that there had been no service of the notice of appeal upon Mohan
Singh -and it was essential for the ends of justice that notice of appeal may
be served upon Mohan Singh". The Court by order dated July 10, 1963,
rejected the application' and proceeded to hear the appeal.
The Court was of the view that since there
was a joint decree against Ratan Lal and Mohan Singh in a suit founded on a
joint cause of action and the decree against Mohan Singh had become final,
Ratan Lal could not claim to be heard on his appeal. The High Court observed:
"If we hear him (Ratan Lal) the result
may be that on the success of his appeal there will be two conflicting
decisions between the same parties in the same suit based on the same cause of
action. Furthermore, the appellant has not taken steps to serve the second
respondent (Mohan Singh) and the appeal must be dismissed for want of
prosecution. On both these grounds we dismiss this appeal." Against the
order passed by the High Court, this appeal, has been, preferred with special
In our view the judgment of the High Court
cannot be sustained,. The appeal could not be dismissed on the ground that
Mohan Singh was not served with the notice of appeal, nor could the appeal be
dismissed on the ground that there was a possibility of two conflicting
decrees. Order 41 r. 4 of the Code of Civil Procedure provides :
"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 298 the defendants, any one of
the plaintiffs or of the defendants may appeal from the whole decree, and
thereupon the Appellate Court may reserve or vary the decree in favour of all
the plaintiffs or defendants, as the case may 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 reserve or vary the decree in favour of all the parties who are
in the same interest as the appellant. There was some conflict of judicial
opinion in the High Courts' on the question whether power under 0.
41 r. 4 of the Code of Civil Procedure may be
exercised where all the parties against whom a decree passed on a ground which
is common to them are not impleaded in the appeal. The preponderance of
authority in the High Courtís was that even in the absence of a person against
whom a decree has been passed on a ground common with the appellant, the appeal
was maintainable, and 'appropriate relief may be granted It is, however,
unnecessary to examine those decisions for, in our judgment, the question has
been considered by this Court in Karam Singh Sobti and Anr. v.
Shri Pratap Chand and Anr.(1). In that case a
landlord of certain premises filed an action in ejectment against the tenant
and the sub-tenant in respect of premises on the ground that the tenant had
sub-let the premises without the land lord's consent. The Trial Judge decreed
the suit holding that the landlord had not acquiesced in the subletting. _ The
sub-tenant alone appealed to the Additional Senior Subordinate Judge who set
aside the order of the Trial Court. It was urged before this Court that the
appeal by the sub-tenant to the Subordinate Judge was incompetent, because the
tenant against whom a decree in ejectment was passed had not appealed. On
certain question which are not material for the purpose of this judgment, there
was difference of opinion between Sarkar, J., on the one hand, and S. K. Das,
Acting C.J., and Hidayatullah, J., on the other, but the Court unanimously held
in that case that the appeal was maintainable before the Subordinate Judge,
even though the tenant had not appealed against the order of the Court of First
Instance Sarkar, J., observed at p. 663 :
"The suit had been filed both against
the tenant and the sub-tenant, being respectively the Association and the
appellant. One decree had been passed by the trial Judge against both. The
appellant had his own right to appeal from that decree. That right could not be
affected by the Association's decision not to file an appeal. There was one
decree and, therefore, the appellant l(1)  4 S.C.R. 647.
299 was entitled to have it set aside even
though thereby the Association would also be freed from the decree. He could
say that that decree was wrong and should be set -aside as it was passed on the
erroneous finding that the respondent had not acquiesced, in the subletting by
the Association to him. He could challenge that decree on any ground available.
The lower appellate Court was, therefore,
quite competent in the appeal by the appellant from the joint decree in
ejectment against him and the Association, to give him whatever relief he was
found entitled to, even though the Association had filed no appeal." With
that view S. K. Das, Acting C.J., and Hidayatullah, J., agreed : see p. 652. It
is true that in that case the tenant was made a party to the appeal before the
Subordinate Judge. But the judgment of the Court proceeded upon -a larger
ground that the sub-tenant had a right to appeal against the decree passed
against him and that right was not affected by the tenant's decision not to
file an appeal.
Counsel for the plaintiffs contended that the
appeal filed by Ratan Lal if it be heard may possibly result in an order which
may prejudicially affect Mohan Singh, and if Mohan Singh has no opportunity of
being heard no decree may be passed against him, for to do so would be contrary
to the fundamental rules of natural justice. But in the appeal filed by Ratan
Lal there is no possibility of a decree being passed which may impose a more
onerous liability upon Mohan Singh. The Trial Court has passed a decree against
Ratan Lal and Mohan Singh jointly and severally. Mohan Singh is liable for the
full amount of the claim of the plaintiffs.
If the appeal filed by Ratan Lal succeeds,
the Court may reduce the liability of Mohan Singh, but there may conceivably be
no order by the Court operating to the prejudice of Mohan Singh in the appeal.
It was also urged by counsel for the
plaintiffs that Ratan Lal had been negligent in the High Court in prosecuting
the appeal, and it would be putting a premium upon his negligence to allow him
now to prosecute the appeal. It is not possible on the record, ,as it stands,
to say whether failure to serve notice of appeal upon Mohan Singh was wholly attributable
to the negligence of Ratan Lal. But even if it be assumed that he was
negligent, on that ground he cannot be deprived of his legal right to prosecute
the appeal and to claim relief under 0. 41 r. 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 Mohan Singh and Ratan Lal. In the appeal filed
by Ratan Lal he was denying 300 liability for the claim of the plaintiffs in
This was essentially a case in which the
Court's jurisdiction under 0. 41 r. 4 Code of Civil Procedure could be
The appeal is allowed and the decree passed
by the High Court is set aside. The proceedings are being remanded.
The High Court will admit the appeal in its
original number and hear and dispose it of according to law. There will be no
order -as to costs in this Court of this appeal. In view of the fact that there
has been some negligence on the part of Ratan Lal to prosecute the appeal in
the High Court, we direct that he will pay the costs of the appeal in the High
Court in any event.
R.K.P.S. Appeal allowed.