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PETITIONER: RAMESHWAR PRASAD AND OTHERS

       Vs.

RESPONDENT: M/s.  SHYAM BEHARILALJAGANNATHAND OTHERS

DATE OF JUDGMENT: 03/05/1963

BENCH: DAYAL, RAGHUBAR BENCH: DAYAL, RAGHUBAR SUBBARAO, K. MUDHOLKAR, J.R.

CITATION:  1963 AIR 1901            1964 SCR  (3) 549  CITATOR INFO :  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)

ACT:      Civil Procedure-Joint decree-Appeal filed jointly Death of  one  appellant-Failure  to  add  legal  representatives- Maintainability  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.

HEADNOTE:      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  maint. ainable  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.

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    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 appel- 550 lants  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  Pat.  870; 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 Bom.  143; 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.

JUDGMENT:      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

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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 Nath.      Bhagwati  Prasad,  appellant No. 9 also  died  on  July 2,1956.   His  widow, Remeshwari Devi, was  brought  on  the record in his place.      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 plaintiffsappellants  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  joint- family  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 counteraffidavit  were  misleading and  irrelevant  and  re- affirming 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

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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 leave.      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 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 O.XLI reads:               "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  there-               upon  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

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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  non- appealing 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

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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) [1962] -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  v. 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  exer-               cised by the Court notwithstanding that the (1) I.L.R. [1953] 2 All. 434. (2) I.L.R. 15 Lah.667 (3)  I.L.R. [1953] 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 Assam 164. (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

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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 avoided.      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.

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    We, therefore, dismiss the appeal with costs.                                            Appeal dismissed.