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PETITIONER: RATAN LAL SHAH

       Vs.

RESPONDENT: FIRM LALMANDAS CHHADAMMALAL & ANR.

DATE OF JUDGMENT: 15/04/1969

BENCH: SHAH, J.C. BENCH: SHAH, J.C. MITTER, G.K.

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)

ACT: 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.

HEADNOTE: 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.

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JUDGMENT: 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 of 1953. C.   B. Agarwala and K. P. Gupta, for the appellant. 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 leave. In  our view the judgment of the High Court cannot  be  sus- tained,.   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

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             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  Courts 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  sub- letting.  _ 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 appel- (1)  [1964] 4 S.C.R. 647.                             299               lant  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 sub-               letting  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.,

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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 its  entirety. This   was   essentially  a  case  in  which   the   Court’s jurisdiction under 0. 41 r.   4  Code  of  Civil   Procedure could be exercised. 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. 301