Rameshwar Prasad And Others vs M/s. Shyam Beharilaljagannathand

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

Court: Supreme Court of India

Case Number: Civil Appeal No. 577 of 1961

Decision Date: 3 May 1963

Coram: Raghubar Dayal, J.R. Mudholkar

In this case, the Supreme Court of India considered an appeal filed by Rameshwar Prasad and others against M/s Shyam Beharilal Jagannath and others. The judgment was delivered on 3 May 1963. The bench comprised Justice Raghubar Dayal, Justice J. R. Mudholkar and Justice Subbarao K. Mudholkar. The decision is reported in 1963 AIR 1901 and 1964 SCR (3) 549 and has been subsequently cited in several authorities, including F 1966 SC 1427, D 1971 SC 742, MV 1972 SC 1181, R 1973 SC 655, E 1975 SC 733 and RF 1979 SC 1393. The matter concerned procedural issues relating to a joint decree, the filing of a joint appeal, the death of one appellant, the failure to substitute his legal representatives, and the question of whether the appeal could be maintained by the surviving appellants. The statutory provisions in issue were Order 22 rules 2, 3, 9 and 11, and Order 41 rules 4 and 33 of the Code of Civil Procedure, 1908. The factual background, as recorded in the headnote, is that nine plaintiffs, including a person identified as K, instituted a suit for ejectment and recovery of rent against two defendants and obtained a decree in their favour. On appeal, the district judge set aside the part of the decree relating to defendant number 2. Accordingly, the plaintiffs filed a second appeal before the High Court on 29 February 1952. While that appeal was pending, appellant K died on 8 September 1955. No application was filed within the prescribed time to bring K’s legal representatives onto the record, and consequently the appeal was deemed to have abated with respect to K. When the appeal of the remaining plaintiffs was scheduled for hearing on 1 September 1958, the respondents raised a preliminary objection, contending that the entire appeal had abated because the interests of the surviving appellants and the deceased appellant were joint and indivisible, and that permitting the appeal to proceed would result in two inconsistent decrees if the appeal succeeded. The appellants argued that the appeal remained maintainable. They relied on Order 41 rule 4 of the Code of Civil Procedure, asserting that the surviving plaintiffs could invoke that provision to continue the appeal against the whole decree. They further submitted that, despite K’s death and the abatement of the appeal as to him, the court retained jurisdiction to reverse or modify the original decree in favour of all the original plaintiffs, thereby granting relief that would also affect K’s rights and interests. The Court held that the provisions of Order 41 rule 4 were not applicable because the second appeal before the High Court had not been filed by any individual plaintiff or a subset of the plaintiffs as an appeal against the entire decree. Instead, the appeal had been lodged jointly by all the plaintiffs, and the surviving appellants could not be said to represent K. The Court further held that an appellate court possessed no power to proceed with the appeal and to reverse or vary the decree in favour of all the plaintiffs when the decree was based on a joint decree that could not be altered under Order 41 rule 4 after the death of one of the joint parties.

In examining the applicability of Order 41, Rule 4 of the Code of Civil Procedure, the Court explained that the rule becomes relevant when a decree is passed on a ground common to all plaintiffs or all defendants, when every plaintiff or every defendant files an appeal against that decree, and subsequently any of those appellants die. In such a situation the appeal abates as to the deceased appellant under Order 22, Rule 3 because the necessary substitution of legal representatives has not been made within the prescribed time. The Court affirmed this principle by citing several authorities that endorse it, namely 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, which were approved. The Court also noted authorities that were disapproved, namely 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. Moreover, the Court held that Order 41, Rule 33 was not applicable because, under the specific circumstances of this case, the appeal filed by the surviving appellants was not competent, relying on Mohomed Khaleej Shirazi & Sons v. Lee Tanneries, 53 I.A. 84.

The judgment proceeded in the civil appellate jurisdiction concerning Civil Appeal No. 577 of 1961, which was filed by special leave from the judgment and decree dated 7 January 1959 of the Allahabad High Court in Second Appeal No. 448 of 1952. Counsel for the appellants were Sarjoo Prasad, Vithal Bhai Patel and S.S. Shukla, while counsel for the respondent were C.B. Agarwala and J.P. Goyal. The judgment was delivered on 3 May 1963 by Justice Raghabar Dayal. The Court set out the factual background leading to the present appeal. Nine individuals, including Kedar Nath, had instituted a suit for ejectment and recovery of rent against two defendants, alleging that defendant No. 1 was the tenant‑chief who had sub‑let the premises to defendant No. 2. The trial court decreed ejectment against both defendants and awarded arrears of rent against defendant No. 1. On appeal by defendant No. 2, the District Judge set aside the ejectment decree against defendant No. 2 while confirming the remainder of the decree against defendant No. 1. The nine original plaintiffs then filed a second appeal in the High Court on 29 February 1952 against that decree. Kedar Nath, who was appellant No. 3, died on 8 September 1955. According to Rules 3 and 11 of Order XXII of the Code, the appeal consequently abated as to Kedar Nath because no application was made within the prescribed period to bring his legal representatives on the record. Subsequently, on 1 October 1956, two applications were filed in the High Court: one under Section 5 of the Limitation Act seeking condonation of the delay in filing an application for substitution of heirs in place of Kedar Nath, and the other application for substitution itself.

In the High Court, the second application sought the substitution of the heirs of the deceased appellant Kedar Nath. It requested that Bithal Das and Banarsi Das, who were the sons of the late Kedar Nath, be placed in his stead as his heirs and representatives. Both the application for condonation of delay under section 5 of the Limitation Act and the application for substitution were dismissed on 1 May 1957, resulting in the appeal being deemed abated with respect to Kedar Nath. Subsequently, Bhagwati Prasad, identified as appellant number nine, also died on 2 July 1956. His widow, Remeshwari Devi, was then brought onto the record in his place. When the remaining appeals, that is, those of the appellants other than Kedar Nath, were scheduled for hearing on 1 September 1958, the respondent raised a preliminary objection asserting that the entire appeal had abated. The counsel appearing for the appellants argued that the deceased was a member of a joint Hindu family, that other members of that family were already parties to the proceedings, and therefore it was unnecessary to record any additional person. He further maintained that, under the particular circumstances, the appeal could not be said to have abated. The Court granted the appellants time to file an affidavit confirming that the deceased belonged to a joint Hindu family and stating other relevant facts. Accordingly, on 8 September 1958, an affidavit was filed by Suraj Prasad Misra, the appointed representative of the appellants. Paragraph nine of that affidavit asserted that Lala Ram Chandra Prasad, identified as appellant number eight, managed the family properties, including the disputed premises, that the property was held jointly, and that he acted on behalf of the family and was already a party to the suit. A counter‑affidavit was then filed, contending that the statements in paragraph nine were misleading, that the affidavit made no claim that the family was a joint Hindu family, and that, in truth, the plaintiffs’ family was not a joint family but a collection of separated members. The counter‑affidavit further asserted that Lala Ram Chandra Prasad was not the karta of any joint Hindu family, that the plaintiffs were assessed for income tax individually, and that the disputed property was neither joint‑family property nor even jointly owned. In response, a rejoinder affidavit was filed by Sri Narain, the general agent of the appellants, stating that the allegations in the counter‑affidavit were misleading and irrelevant, and reaffirming that Ram Chandra Prasad managed the family house property, including the contested premises, and that he looked after the affairs of the house property and acted for and on behalf of the family, just as other family members attended to other family affairs such as the family business. At the hearing of the appeal of the surviving appellants, the sole issue raised for consideration appeared to be whether the surviving appellants were competent to continue the appeal pursuant to order XLI, rule 4 of the Code of Civil Procedure. That contention was rejected, the Court relying on the full‑bench decision of the Allahabad High Court in Baij Nath v. Ram Bharose.

In the earlier decision rendered by Justice Bharose, the Court observed that the interests of the surviving appellants and those of the deceased appellant were joint and indivisible, and that a successful appeal would have produced two inconsistent and contradictory decrees. Consequently, the Court dismissed the appeal. The present petition was filed against that dismissal after the petitioner obtained special leave to appeal.

Counsel for the appellants, identified as Mr. Sarjoo Prasad, advanced two specific submissions. The first submission contended that Rule 2 of Order XXII, rather than Rule 3 of the same Order, should govern the present facts because the nine appellants formed a joint Hindu family, and therefore the surviving plaintiffs were entitled to continue the appeal. The second submission argued that, assuming Rule 3 of Order XXII applied and that the appeal brought by the deceased appellant Kedar Nath had abated, the interpretation of Rule 4 of Order XLI in the cases of Baij Nath v. Ram Bharose (1) and Ramphal Sahu v. Babu Satdeo Jha (2) had been erroneous.

The Court found no merit in the first submission. The record shows that after the issue of a joint Hindu family was raised, the affidavits filed by the appellants made no claim that Kedar Nath and the surviving appellants constituted such a family, even though they were given an opportunity to do so. The logical conclusion, supported by the citations (1) I.L.R. [1953] All 434 and (2) I.L.R. 19 Pat 870, is that the parties did not, in fact, belong to a joint Hindu family as alleged by the respondents. Moreover, an application dated 1 October 1956 sought to substitute the sons of Kedar Nath as his heirs and legal representatives, expressly on the ground that Kedar Nath was not a member of a joint Hindu family. On this basis, the Court was of the opinion that the required joint family relationship had not been established, and therefore the right to appeal did not survive solely in the hands of the surviving appellants under Rule 2 of Order XXII.

The second submission asserted that the surviving appellants could have pursued an appeal against the entire decree by relying on Rule 4 of Order XLI, which would have permitted them to continue the appeal after Kedar Nath’s death and to obtain a reversal or variation of the whole decree in favour of all original plaintiffs, including the rights of Kedar Nath. The Court rejected this argument. Rule 4 of Order XLI reads: “Where there are more plaintiffs or more defendants than one in a suit, and

The Court explained that the rule governing appeals states that when a decree is based on a ground common to all plaintiffs or all defendants, any one plaintiff or any one defendant may file an appeal against the whole decree, and the appellate court may then reverse or vary the decree in favour of all parties concerned. This provision allows a single plaintiff or a single defendant to pursue an appeal that affects the entire decree. The Court observed that the second appeal that had been presented before the High Court was not filed by a single plaintiff or by a subset of the plaintiffs seeking to challenge the whole decree. Instead, the appeal was presented jointly by all of the plaintiffs. Consequently, the appeal did not fall within the scope of rule 4 of Order XLI, which applies only where an individual plaintiff or defendant seeks to appeal the entire decree. The Court further held that the appeal could not be construed as an appeal filed by some of the plaintiffs against the whole decree under rule 4 of Order XLI from the moment the appeal abated with respect to the deceased appellant, Kedar Nath. If the appeal were treated in that manner, it would have been filed after the statutory period for filing such an appeal had expired. At the relevant time, the decree was operative against the surviving plaintiffs as well as against the legal representatives of Kedar Nath, and those representatives could not invoke rule 4 of Order XLI. Accordingly, the Court concluded that rule 4 of Order XLI was unavailable to the surviving plaintiffs at that stage. The Court also elucidated the underlying principle of rule 4, namely that when a single plaintiff or defendant files an appeal, that party is deemed to represent all other non‑appealing parties because the original decree rested on a common ground applicable to all. In this case, Kedar Nath was alive when the appeal was originally filed and he was himself an appellant. The surviving appellants therefore could not be said to be filing the appeal on behalf of Kedar Nath. Since Kedar Nath’s appeal had already abated, the decree in favour of the respondents had become final as against his legal representatives, who could not seek to evict the defendants from the suit premises. The Court warned that it would be contrary to the scheme of the Code to allow rule 4 of Order XLI to enable the court to pass a decree favorable to the legal representatives of the deceased Kedar Nath on the basis of an appeal filed only by the surviving appellants, when the decree against Kedar Nath was already final. The Court cited the decision in State of Punjab v. Nathu Ram, stating that the abatement of an appeal not only renders the decree between the appellant and the deceased respondent final, but also necessarily bars the appellate court from modifying that decree in any manner, directly or indirectly, because the legal representatives of the deceased are not before the court.

The Court observed that because the deceased respondent’s legal representatives were not before the appellate Court, that Court could not make any determination that would affect the legal representatives’ rights under the decree. It emphasized that the fact that any modification to be made might fall within an exception was irrelevant. The Court further held that there was no question of the provisions of rule 4 of Order XLI overriding the provisions of rule 9 of Order XXII, since the two rules govern different stages of an appeal and address distinct contingencies. Rule 4 of Order XLI applies at the moment an appeal is filed and authorises either a plaintiff or a defendant to lodge an appeal against the whole decree in certain situations; a party may invoke this provision, but he is not compelled to do so. Once every plaintiff has filed an appeal, rule 4 of Order XLI ceases to be applicable. By contrast, Order XXII operates while an appeal is pending, not at the time of its institution. If a party dies during the pendency of the appeal, his legal representatives must be brought on record within the period prescribed by the limitation rules; failure to do so results in the appeal of the deceased appellant abating and the appeal does not proceed further with respect to that appellant. Consequently, there is no inconsistency between rule 9 of Order XXII and rule 4 of Order XLI of the Code of Civil Procedure, as they function at different phases and provide for different eventualities. The Court found nothing in the wording of either rule that would cause the operation of one to interfere with the operation of the other. The Court noted that it was unnecessary to discuss the authorities cited during the hearing, but it was sufficient to state that the majority of High Courts have adopted the view that the appellate Court lacks authority to continue with an appeal and to reverse or vary a decree in favour of all plaintiffs or defendants under rule 4 of Order XLI when the decree rests on a ground common to all parties, if every plaintiff or defendant has filed an appeal and any one of them dies, causing the appeal to abate for that party under rule 3 of Order XXII. The Court listed several decisions supporting this majority view, namely 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) and Sonahar Ali v. Mukbul Ali (8). It also observed that the Bombay, Calcutta and Madras High Courts have taken a divergent position, referring to cases such as Shripad Balwant v. Nagu, Kusheba Satulal Bhattachariya v. Asiruddin Shaikh and Somasundaram Chettiar v. Vaithilinga Mudaliar. Finally, the Court held that Order XLI, rule 33 did not lend any support to the appellants’ contention that their appeal could proceed despite the abatement of Kedar Nath’s appeal, because that rule would only allow the Court to pass a decree in favour of the rights and interests of the deceased Kedar Nath, which was not applicable in the present circumstance.

The Court explained that Rule 33 of Order XLI states that the Appellate Court possesses the authority to pass any decree and to make any order which should have been passed or made, and also to pass or make any further or other decree or order as the circumstances may require. This power may be exercised even when the appeal concerns only a part of the decree and may be exercised in favour of all or any of the respondents or parties, even if those respondents or parties have not filed any appeal or objection. However, the provision includes a safeguard that the Appellate Court shall not make any order under section 35A in pursuance of any objection on which the lower court, whose decree is being appealed, has omitted or refused to make such order. The Court listed the authorities cited in support of this rule, namely I.L.R. [1953] 2 All. 434; I.L.R. 15 Lah. 667; I.L.R. [1953] 2 All. 434; I.L.R. 1946 Lah. 399; I.L.R. M.P. 21; A.I.R. 1959 Orissa 148; A.I.R. 1963 A.P. 168; A.I.R. 1956 Assam 164; I.R.R. 1943 BOM. 143; I.L.R. 61 CAL. 879; and I.L.R. 40 MAD. 846, thereby indicating the breadth of judicial consideration given to this rule.

The Court further noted that Rule 31 requires the judgment of the Appellate Court to be recorded in writing and to specify, among other matters, the relief to which the appellant is entitled if the decree under appeal is reversed or varied. Rule 32 governs the possible directions of such a judgment, allowing it to confirm, vary, or reverse the appealed decree, or, where the parties to the appeal have agreed upon the form of the decree or the order to be made, to pass a decree or make an order accordingly. Consequently, any reversal or variation must correspond precisely to the rights that the appellant has been found to be entitled to, and the decree must not be altered with respect to rights to which the appellant is not entitled. Rule 33, therefore, delineates the scope of what the Appellate Court may determine the appellant to be entitled to. It empowers the Court to issue any decree or order that should have been made in the proceedings before it, limited to the nature of the decree or order insofar as it affects the appellant’s rights, and also to pass any further or other decree or order as the case may necessitate. While this provision grants the Court wide discretion to fashion decrees and orders in the interest of justice, the Court emphasized that such discretion is to be exercised only in exceptional situations where failure to do so would cause difficulties in adjusting the rights of the parties involved. The Court concluded that the present case does not fall within those exceptional circumstances, particularly because the legal representatives of the deceased had been negligent in seeking substitution, and thus the discretionary power under Rule 33 should not be invoked.

In the present matter the Court observed that both the appellant and the surviving appellants had failed to take the necessary steps to substitute their interests after the abatement of the earlier appeal. Because of this neglect, the Court held that it could not exercise its discretionary power in favour of a party that had been careless in protecting its own rights. The discretionary authority of the Court, the judgment explained, was not a tool to overturn the legal consequences that followed from the abatement of the appeal as it applied to Kedar Nath. To do so would create a situation in which two opposite decrees would exist: one decree issued by the appellate Court in favour of the heirs of Kedar Nath and another contradictory decree issued by the subordinate Court that had become final because of the abatement of the appeal. The presence of such conflicting orders would be undesirable and contrary to the principle that the legal system should avoid the coexistence of inconsistent judgments. Accordingly, the Court emphasised that the discretionary power could not be used to nullify the effect of the abated appeal and could not be exercised to grant relief to a party whose negligence had caused the procedural lapse.

The judgment further examined the relationship between Rule 33 of Order XLI and Rule 9 of Order XXII, noting that the two rules address distinct matters and do not overlap in a manner that would require one to override the other. The Court referred to the decision in Mahomed Khaleel Shirazi and Sons v. Los Panneries Lyonnaises, where it was held that Rule 33 of Order XLI was not meant to apply to an appeal that was not a competent appeal against a party under the Civil Procedure Code or under the Letters Patent of the High Court. Applying that principle to the present case, the Court concluded that the appeal filed by the surviving appellants was not competent under the factual circumstances. Consequently, the provisions of Order XLI, Rule 33 could not be invoked to revive or entertain that appeal. The Court therefore determined that the High Court had no jurisdiction to entertain the surviving appellants’ appeal once the appeal filed by Kedar Nath had abated, because the statutory framework expressly excluded such an incompetent appeal from the scope of Rule 33.

Finally, the Court expressed its opinion that the High Court could not have validly entertained the appeal of the surviving appellants after the earlier appeal by Kedar Nath had been extinguished. All the appellants, including Kedar Nath and the surviving parties, shared a common right and a common interest in obtaining a decree of ejectment against Defendant No. 2. The decree of ejectment could have been based on a ground that was common to all of them, and therefore the rights to enforce that decree were joint. The Court observed that the defendant could not be lawfully removed from the premises when the decree specifically held that Kedar Nath, who possessed a joint interest in letting out the property, could not eject the defendant. Moreover, it was impossible for the defendant to remain as a tenant of one landlord while being excluded as a tenant of the other landlords, given that all landlords possessed the same joint right either to eject the defendant or to accept him as their tenant. On this basis, the Court dismissed the appeal of the surviving appellants, ordered that they bear the costs of the proceedings, and formally recorded the dismissal of the appeal.