Rameshwar Prasad And Ors. vs Shyam Beharilal Jagannath And Ors.

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 3 May, 1963

Coram: J.R. Mudholkar, K. Subba Rao, Raghubar Dayal

In this matter, the Court explained that the appeal originated from a suit for ejectment and rent recovery that had been instituted by nine plaintiffs, including an individual named Kedar Nath, against two defendants. The plaintiffs alleged that the first defendant was the tenant‑in‑chief who had sublet the described premises to the second defendant. The trial court decreed the suit for ejectment against both defendants and also awarded arrears of rent against the first defendant. Upon the second defendant’s appeal, the District Judge set aside the ejectment decree as against him while confirming the remainder of the decree against the first defendant. The nine original plaintiffs subsequently filed a second appeal in the High Court on 29 February 1952, challenging the decree that remained in force.

Subsequently, the appellant identified as Kedar Nath, who was designated appellant No. 3, died on 8 September 1955. Pursuant to Rules 3 and 11 of Order XXII of the Code of Civil Procedure, the Court held that the appeal was deemed to have abated with respect to Kedar Nath because no application had been filed within the prescribed period to include his legal representatives on the record. On 1 October 1956, two applications were presented before the High Court: one seeking condonation of delay under Section 5 of the Limitation Act for filing a substitution application for Kedar Nath’s heirs, and the other praying for the substitution of his two sons, Bithal Das and Banarsi Das, as his heirs and representatives. Both applications were dismissed on 1 May 1957, resulting in the continuation of the abatement of the appeal as against Kedar Nath. Another appellant, identified as appellant No. 9, Bhagwati Prasad, died on 2 July 1956, and his widow, Remeshwari Devi, was subsequently brought onto the record in his place. When the remaining appeals were scheduled for hearing on 1 September 1958, the respondents raised a preliminary objection that the entire appeal had abated. Counsel for the appellants argued that the deceased was a member of a joint Hindu family, that other family members were already parties to the proceedings, and that no further substitution was necessary; the counsel further submitted that the appeal could not be said to have abated under the specific circumstances. The Court granted the appellants time to file an affidavit affirming the deceased’s status as a member of a joint Hindu family and to disclose other relevant facts. Accordingly, on 8 September 1958, an affidavit was filed by Suraj Prasad Misra, acting as pairokar for the appellants, wherein paragraph 9 of the affidavit began with a statement concerning a person named Lala, the remainder of the paragraph being left incomplete in the record.

In this case the Court observed that the appellant identified as Ram Chandra Prasad, who was listed as appellant number eight, managed the family properties, including the property that was the subject of the dispute, and that he acted on behalf of the family in relation to those properties; consequently he was already recorded on the docket. A counter‑affidavit was then filed, asserting that the statements made in paragraph nine of the earlier affidavit were misleading, that the affidavit did not state that the family was a joint Hindu family, and that the correct facts were that the plaintiffs‑appellants did not constitute a joint family, that the members were living separately, that Lala Ram Chandra Prasad was not the karta of any joint Hindu family, that the plaintiffs were each assessed separately for income‑tax purposes, and that the property in dispute was neither a joint‑family property nor a jointly owned property. Following that, a rejoinder affidavit was filed by the general agent of the appellants, Sri Narain, who contended that the statements in the counter‑affidavit were misleading and irrelevant, and he reiterated that Ram Chandra Prasad managed the family’s house property, including the disputed house, that he looked after the affairs of that house property and acted for and on behalf of the family in the same manner as other family members managed other family affairs, such as the family business. At the hearing of the appeal of the surviving appellants, the sole issue raised for consideration was whether the surviving appellants were competent to continue the appeal pursuant to Order XLI, rule 4, of the Code of Civil Procedure. The Court rejected that contention, relying on the full‑bench decision of the Allahabad High Court in Baij Nath v. Ram Bharose (I.L.R. [1953] All. 434), holding that the interests of the surviving appellants and those of the deceased appellant were joint and indivisible, and that allowing the appeal would result in two inconsistent and contradictory decrees if the appeal succeeded; consequently the appeal was dismissed. The present appeal was filed against that dismissal after the grant of special leave. Counsel for the appellants then raised two points. The first point argued that rule 2 of Order XXII, rather than rule 3, applied because the nine appellants formed a joint Hindu family and therefore the surviving plaintiffs could continue the appeal. The second point contended that if rule 3 of Order XXII applied and the appeal of Kedar Nath had abated, then the interpretation of rule 4 of Order XLI in Baij Nath v. Ram Bharose and Ramphal Sahu v. Babu Satdeo Jha (I.L.R. 19 Pat. 870) was incorrect. The Court found no merit in the first contention, noting again that the various affidavits filed after the issue was raised did not contain any averment that Kedar Nath, the deceased appellant, and the surviving appellants constituted a joint Hindu family; the affidavits clearly omitted such a claim despite having been given an opportunity to do so, leading to the inference that they did not, as alleged by the respondents.

In the affidavits that were filed on behalf of the appellants, no statement was made that Kedar Nath and the surviving appellants formed a joint Hindu family, even though they had been given an opportunity to file an affidavit containing such a statement. The obvious implication of this omission was that the parties did not, in fact, constitute a joint Hindu family as the respondents had alleged. The Court also noted the significance of the application filed on 1 October 1956 that sought to substitute the sons of Kedar Nath in his place. That application expressly described the sons as his heirs and legal representatives and was based on the premise that Kedar Nath was not a member of any joint Hindu family. Consequently, the Court held that it had not been proved that the deceased Kedar Nath and the other appellants were members of a joint Hindu family, that the right of appeal therefore survived only in the surviving appellants, and that those surviving appellants could have continued the appeal only under rule 2 of Order XXII of the Code of Civil Procedure.

The second contention raised by the appellants was that, on the basis of rule 4 of Order XLI of the Code, the surviving appellants could have instituted an appeal against the entire decree, could have remained competent to pursue the appeal after Kedar Nath’s death and the resulting abatement of his portion of the appeal, and that the Court could have reversed or varied the whole decree in favour of all the original plaintiffs, thereby granting relief concerning Kedar Nath’s rights and interests. The Court rejected this argument. It quoted the text of rule 4, which 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 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 very the decree in favour of all the plaintiffs or defendants, as the case may be.” The rule permits a single plaintiff or defendant to file an appeal that affects the entire decree. However, the Court observed that the second appeal filed in the High Court had been presented jointly by all the plaintiffs, not by one plaintiff or a subset of plaintiffs, and therefore did not fall within the scope of rule 4 of Order XLI. Moreover, treating the appeal as one filed by some plaintiffs after Kedar Nath’s death would have placed it beyond the time limit prescribed for filing an appeal, and at that point the decree stood against the surviving plaintiffs and Kedar Nath’s legal representatives. Consequently, the Court concluded that rule 4 could not be invoked by the surviving plaintiffs in the circumstances.

The Court observed that the legal representatives of Kedar Nath could not rely on rule 4 of Order XLI. Consequently, that rule was not available to the surviving plaintiffs at the relevant time. The Court explained that the purpose of rule 4 of Order XLI is to permit a single plaintiff or defendant, when filing an appeal, to represent all other parties who are not appearing, because the original decree is based on a ground common to all of them. In the present case Kedar Nath was alive when the appeal was presented and he was himself one of the appellants. Therefore the appeal filed by the surviving appellants could not be said to represent Kedar Nath.

The Court noted that Kedar Nath’s appeal had abated and that the decree in favour of the respondents had become final with respect to his legal representatives. The Court further held that those legal representatives could not evict the defendants from the suit premises. To allow the decree to be altered in favour of the legal representatives of the deceased Kedar Nath on the basis of an appeal heard by the surviving appellants would be contrary to the scheme of the Code. The Court referred to the decision in State of Punjab v. Nathu Ram, stating: “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.”

Finally, the Court clarified that there is no conflict between rule 4 of Order XLI and rule 9 of Order XXII. The two rules concern different stages of an appeal and address different circumstances. Rule 4 of Order XLI governs the moment an appeal is filed and allows one plaintiff or defendant to file an appeal against the entire decree in certain situations, but it may be exercised at the appellant’s discretion. Once all plaintiffs have filed an appeal, rule 4 ceases to apply. In contrast, Order XXII operates while an appeal is pending, not at its inception. If a party dies during the pendency of an appeal, the deceased’s legal representatives must be entered on the record within the limitation period; failure to do so results in the abatement of the deceased’s appeal, preventing any further progression. Accordingly, the provisions operate at distinct stages and do not conflict with each other.

The Court observed that Rule 9 of Order XXII and Rule 4 of Order XLI under the Code of Civil Procedure function at distinct stages of proceedings and address separate contingencies. Because the two rules govern different moments in the appellate process, there is no overlap in their provisions that would cause one rule to interfere with the other. The Court stated that it was unnecessary to revisit the authorities cited during the hearing. It was sufficient to note that the predominant view of the High Courts is that an appellate court lacks authority to continue an appeal and to reverse or vary a decree in favor of all plaintiffs or defendants under Order XLI, Rule 4 when the decree is grounded on a common basis for all parties, if every plaintiff or defendant has lodged an appeal and any one of them dies, causing the appeal of the deceased to abate under Order XXII, Rule 3. The Court listed the supporting decisions of the majority, namely Ramphal Sahu v. Babu Satdeo Jha [I.L.R. [1953] 2 All. 434]; 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 [I.L.R. 1946 Lah. 399]; Pyarelal v. Sikhar Chand [I.L.R. M.P. 21]; Raghu Sutar v. Nrusingha Nath; Venkata Ram Rao v. Narayana; and Sonahar Ali v. Mukbul Ali [A.I.R. 1956 Assam 164]. By contrast, the Bombay, Calcutta and Madras High Courts have adopted a different approach, as reflected in Shripad Balwant v. Nagu Kusheba [I.L.R. 1943 Bom. 143]; Satulal Bhattachariya v. Asiruddin Shaikh [I.L.R. 61 Cal. 879]; and Somasundaram Chettiar v. Vaithilinga Mudaliar [I.L.R. 40 Mad. 846].

Regarding the contention that the appeal could proceed despite the abatement of Kedar Nath’s appeal, the Court held that Order XLI, Rule 33 did not assist the appellants. The rule permits the appellate court to pass any decree or make any order that ought to have been passed or made, and to grant further or other decrees or orders as the situation requires, even when the appeal concerns only a part of the decree, and to exercise this power in favor of all or any respondents or parties, irrespective of whether those respondents or parties have filed any appeal or objection. However, the rule includes the proviso that the appellate court shall not make any order under section 35A in pursuance of any objection on which the court from which the decree originated has omitted or refused to make such order. The Court further noted that Rule 33 falls under the sub‑heading “judgment in appeal,” and that Rule 31 mandates that the judgment of the appellate court be rendered in writing and must state, among other things, the relief to which the appellant is entitled if the decree under appeal is reversed.

Rule thirty‑two describes the possible directions of a judgment in an appeal. The rule permits the judgment to confirm, vary, or reverse the decree that is being appealed. Moreover, if the parties to the appeal agree on the specific form that the appealed decree should take, or if they agree on the particular order that should be made, the appellate court is authorised to pass a decree or to make an order in accordance with that agreement. Consequently, any reversal or variation of the decree must be limited to what the appellant has been found entitled to receive. The decree cannot be reversed or altered with respect to rights that the appellant has not been found to possess. Rule thirty‑three, in turn, sets out what the appellate court may determine the appellant to be entitled to. It empowers the appellate court to pass any decree and to make any order that ought to have been passed or made during the proceedings before it, but only to the extent that such decree or order affects the appellant’s rights. The rule also authorises the court to pass further or additional decrees or orders as the circumstances of the case may require. Thus, the appellate court is granted a broad discretion to issue decrees and orders that the interests of justice demand. However, this discretion is intended to be exercised only in exceptional situations where failing to act would cause difficulty in adjusting the rights of the various parties. The present matter does not fall within that exceptional category.

The legal representatives of the deceased appellant and of the surviving appellants failed to act promptly to obtain substitution for the deceased party. Because of that negligence, the court should not exercise its discretionary power in favour of those representatives. The discretionary power cannot be used to set aside the effect of the abatement of the appeal in respect of Kedar Nath. If the court were to do so, it would create two contradictory decrees: one decree issued by the appellate court and another decree of opposite effect issued by the lower court, which has become final as a result of the appeal’s abatement concerning those parties. The law seeks to avoid such contradictory orders. Rule thirty‑three deals with a different matter from rule nine of Order XXII, and there is no conflict between the two provisions. In the earlier decision of Mahomed Khaleel Shirazi & Sons v. Les Tanneries Lyonnaises, the court held that Order XLI, rule thirty‑three was not meant to apply to an appeal that was not a competent appeal against a party under the Code or the Letters Patent of the High Court. The same principle applies here. The appeal filed by the surviving appellants is not a competent appeal in the circumstances of this case, and therefore the provisions of Order XLI, rule thirty‑three are not applicable to it.

The Court observed that the provisions of Order XLI, rule 33 did not apply to the present appeal because the appeal was not a competent one under the relevant procedural rules. Consequently, the Court held that the High Court could not have entertained the appeal filed by the surviving appellants after the earlier appeal filed by Kedar Nath had become extinguished. The reason for this conclusion was that all of the appellants shared a common right and a common interest in obtaining a decree of ejectment against defendant No. 2, and any such decree would have been based on a ground that was common to every appellant. The Court further explained that the defendant could not be removed from the premises on the basis of a decree that allowed Kedar Nath, who was one of the persons holding a joint interest in letting out the property, to retain the tenant. It was not feasible for the defendant to remain a tenant of one landlord while not being a tenant of the other landlords, when all of the landlords possessed a joint right either to eject the tenant or to have him remain as their tenant. Accordingly, the Court dismissed the appeal and ordered that the costs of the proceedings be borne by the appellants. The appeal was therefore dismissed.