RAMESHWAR PRASAD AND OTHERS versus M/S. SHYAM BEHARILAL JAGANNATH AND OTHERS

s.c.R.. SUPRBNIB C0URT RBP0RTS

RAMESHWAR PRASAD AND OTHERS

M/s. SHY AM BEHARILALJAGANNATH AND OTHERS

(K. SmrnA RAo, RAGHUBAR DAYAL and J. R. MunHoLXA.R JJ.)

-Oivil Procedure-Joint tkme-A.ppeal filed jolnlly-Dw.th of one appellant-Failure to add kual repruB111<di11BB-M aintainability of appeal by aurviving appellanta-Ootk of Oivil Procedure, 1908 (Act 6 of 1908), 0. 22, "· 2,3, 9,11, 0. 41, "· 4,33.

Nine persons induding K instituted suit for ejectment and recovery of rent Against two defendants and obtained decree, but on appeal, the DistrictJudge set aside the decree against defendant No. 2. The plaintifl's then filed second appeal in the High Court on February 29, 1952, and while the appeal was pending K c!ied on September 8, 1955. No appli-cation 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, 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 appellant• could have filed the appeal against the entire decree in view of the provisions of 0. 41, r. 4, of the Code of Civil Procedure, that they were, therefore, competent to continue the appeal even after the death of Kand the abatement of the appeal so far as he was concerned, and that the Court could have reversed or varied the who!e decree in favour of all the original plaintiffs and could have granted relief with respect to the rights and interests of K as well.

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 filed by all the plaintiffs jointly, and the surviving appel· . . '

J9fij

lants could not be said to have filed the appeal as represeat-ing K. •

RcaubJor Prasad •· M/1 SA.- Bo/tdrilol JqanMlh

•· . (2) that an appellate court had no power to proceed with M/1 SA.- Bo/tdrilol the appeal and to reverse and vary the decree in favour of all JqanMlh the plaintiffs or defendants under 0. 41, r. 4, of the Code of Civil Procedure, when the decree proceeded on ground comm· on to all the plaintiffs or defendants, if all the plaintiff'• or the defendants appealed from the decree and any of them died iiitd the appeal abated so far as he was concerned under 0. 22, r. 3.

Ramphal Sahu v. Babu Satdeo Jha, I.L.R. 19 Pat. 870; Amin Okand v. Bakleo Sahai Ganga Sakai, 1.L.R. 15 Lah. 667; Baij Nath v. Ram Bharoae, I.L.R. 1953 (2) AIL 434; Nanak v. Ahmad Ali, A.I.R. 1946 Lah. 399; Pyare!al v. Sikhar Ohand, I.L.R. 1957 M.P. 21; Raghu Sutar v. NrusinghfJ Nath, A.I.R. 1959 Orissa 148; Venkata Ram Rao v. Narayana, A.I.R. 1963 A.P. 168 and Sonahar Ali v. Mukbul Ali, A.I.R. 1956 Assam 164, approved.

Skripad Balwanl v. Nagu Kuskeba, I.L.R. 1943 Bom. 143; Satula Bhattachariya v. Asiruddin Shaikh, I.L.R. 61 Cal. 879 and Somasundaram Okettiar v. Vaitkilinga Mutlaliar, I.L.R. +o Mad. 846, disapproved.

(3) that the provisions ofO. 41, r. 33 were 'not &PJ>li- · cable since the appeal by the surviving appellants was not competent in the circumstances of the case.

Mohomed Khaleel Shim & Sona v. Lu Tanneriea, 53 I.A. 84, relied on.

CIVIL APPELLATE JuRISDIGTION : 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.

O. B. Agarwala, and J.P. Goyal, for the res-I. · pondent No.

1963. May 3. The Judgment of the Court was delivered by RAGHUBAR DAYAL J.-The facts leading to appeal, by special leave, are tl\ese.

floghut111 D•µI 11

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for persons, including Kcdar Nath, instituted suit ejectment and recovery of rent against two defen• dants on the allegation that defendant No. I was the tenant-in-chief 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 Feb• ruary 29, 1952.

Kedar Nath, appellant No. 3, died on Septem• ber 8, 1955. In view of rr. 3 and 11 of O. XXII of the Code of Civil Procedure, hereinafter called the Code, the appeal abated so far as Kedar Nath was concerned as no application for bringing his legal repre1entatives 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 place of Kedar Nath. The other was the application for substitution in which it was pra-yed 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 dis-missed 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 I, l958, preliminary objection was taken for tl!c ' ' ' . . .;

1'9 Pr..U 11..,,,,_ v. M/1. Bllumhl I......,.

1§63 p,.,.,, , YI M/1. SAjint Blfurilal l.,_,.ih ·-IU;ti.t&.r Doyal J.

552 SUPRBm qoURT REPORTS [1964] VOi:..

respondent that the entire appeal had abated. Mr. Jagdish Swarup, learned counsel appearing for the appellants, contended that the deceased belonged to joint Hindu family and other members of the it was family were already on the record and that 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 affi-davit stating that the deceased was member of the joint Hindu family and other relevant facts. ·Oa 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 proper-ties 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. counter-affidavit was filed stating that the allegations in para 9 of the affidavit were mis-leading, that there was no allegation in the affidavit_ that the family was joint Hindu family and that the true facts were that the family of the plaintiffs-appellants was not 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 was property in dispute not joint-family property or even joint property. rejoinder affidavit was then filed by Sri Narain, general agent of the appellants stating that the aforesaid statements in the counter-affidavit 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.

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At t:he or hearing or the appeal the surviving appellants, the only point which was urged for consideration seems to have been that the surviving were appellants competent to continue the appeal in view of 0.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 Boorose ([1 ]), as the interests of the surviving were appellants and the deceased appellant joint and indivisible and as in the event of the success of the appeal there would be two inconsistent and contra-dictory 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 joint Hindu family and the surviving plaintiffs could continue the appeal. The is that if r. 3 second point the provisions of of O.XXII applied and the appeal of Kedar Nath had abated, the provisions of r. 4 of O.XLI have not been construed in Baij Nath v. Ram Bharose ([1]) and Ramphal Sahu v. Babu Satlleo JhrJ, (').

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 appel-lant and the surviving appellants constituted joint Hindu family. They clearly indicate that the affi-davits filed on behalf of the appellants made no averment that Kedar Nath and the surviving appel-Llnts formed joint Hindu family, even though time had been given to them for filing an affidavit stating such fact. The inference is obvious, and

II, 1.1..a. [19531 AU,•"•

t2> 1,1>,ll; 19 l'•t. 87t,

lt.1U1t1s!iU1or Pruotl •• M/s. Shy.,. •1hllfillll JaglUIMth

R•tlw6ar DtJyllJ /.

is that these people did not form joint Hindu as family alleged by the respondents.

lttltlllJ,..., p,.,.,

Alf" I'- SWril.t

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 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 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 O.XXII of the Code.

The second contention really is that the survi-ving appellants could have instituted the appeal against the entire decree in vie..y of .the provisions of O.XLI, r. 4 qf the Code, that they were, there· fore, 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.XLJ reads_:

"Where there are more plaintiffs or more defendants than one in suit, and the decree on appealed from proceeds 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 favour of all the plaintiffs or defendants, as the case may be."

These provisions enable one of the plaintiffs or one 9f !h!; qefel)daqts to file an · appeal against !he

3 S.C.R. SUPRENIB COURT RBPORTS

decree. The aecond appeal filed in the High Court was not filed by any one or by even some of the as plaintiffs an appeal against the whole decree, but was filed by all the plaintiffs j )intly, and, therefore, was not an appeal to which the provisions of r. 4 . O.XLI could apply.

"-'""'- ,,... ••

•• ..... 1• J.,_, ll<J.ol J.

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 dace when so the appeal abated far as Kcdar 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 one -0f that any the plaintiffs or defendants: in filing such an appeal, represents all as the other non-appealing plaintiffs or defendants 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 ground common to all of them. Kedar Nath was alive when the was filed and was one appeal actually of the appel-lants. 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 0. XLI empowered the Court to pass of of the qecree iq favour representatives

r , v.". · . ·W /s •. Shyam Behari/ol Jagarinatlr:

'556 SUPREN1'.E COURT REPORTS [1964] VOL.

deceased Kedar Nath on .. hearing an appeal by the even surviving appellants though the decree against him has become final. This C.Ourt said in State of ' Punjab v. Nathu Ram(').

"The abatement of an appeal means not only that the decree between .the appellant and the deceased respondent had become final, but also, as necessary corollary, that the appellate Court cannot, in any way, modify that decree directly or indirectly. The teason is plain. It is that in the absence of the legal representa-tives 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 cqntingencies. 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 provi· sion, 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 pend ency of the appeal, his legal representatives have to be brought on the record within the period of limitation. If that is not done, the appeal by the deci:ased appel-lant .abates and does not proceed any further. There is thus no inconsistency between the provisions of r. 9 of 0. XXII and those of r. 4 of O.XLI, C.P.C. They operate at different stages and provide for (1) '(1962] "2 8,0; a. 656.

s.c.tt. SUPRENIE COURT REPORTS

different contingencies. There is nothing common of one in. their provisions which make the provisions 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 0.XLI, r. 4 when the decree pro-ceeds on 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 (');Amin Okand v. Baldeo Sakai Ganga Sakai('), Baij Nath v. Ram Bharose ([3]); Nanak v. Ahmad Ali('); Pyarelal v. Sikhar Ohand ([5]); Ragku Sutar v. Nrusingha Nath ([5]); Venlcata Ram Rao v. Nara-yana ('); Sonahar AU v. Mukbul AU ([8]). The Bombay, Calcutta and Madras High Courts have taken different view: see Skripad Balwant v. Nagu Kuskeba ('); Satulal Bhattackariya v. Asiruddin Shaikh (''); Somasundaram Ohettiar v. Vaithilinga Mudaliar ([11]).

Order XLI, 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 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 or have been passed made and to pass or make such further or other decree or order as the case may require, and this power may be exer-cised by the Court notwithstanding that the

. (I) I.L.R. [1953] 2 All. 434. <S) I.I.R. (1953)2 All. 4M.

t2) I.L.R. 15 Lab. 667. (4) I.I.R. 1946 Lah; 399 • (6) A.I.R. 1959 ()riua HS. (8) AJ.lt, 1956 Am.m 16f. ( 10) I.LR; 61 Cal; 1179. lliQ etti,

. (51 I.I.It. M.P. 21. ·

(7) AJ,ll. 1963 A,P, 168.

(9) l;b;lt; 19'5

(11) r,ri.a,

__,_ RomeshZNr Praaav. M/s. B11ra·n11 Joianrusth --Raghuhar Dayal J, '' -1: ,-.

1.96! lf•IM- Ptusu v. 'fs. Bv.a•ilal ,.,.._

558 StJPltliME COURT RBPORTS [1064) VOL.

appeal is as to part only of the decree and may be exercised in favour of all or any of the·res-pondents 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 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 decree or make an order Appellate Court may pass 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 pas-sed or made in the proceedings before it and thus · could have reference orily to the nature of the decree or Order in so far as it affects the rightt of the appe-llant. It further empowers the Appellate Court to or make such further or other decree or Order pass as the case is may require. The Court thus given wii:{e discretion to pau such decrees and Orders as

COURT REPORTS 559

3 S.C.R.

the interests of justice demand. Such power is to be excercised in exeptional cases when its non-exer-cise will lead to difficulties in the adjustment of rights of the various parties. case like the present is not case of such kind.

Ramuhulu Prouti •• M/s. Syam Bihjrif•I J-1

11.,,,,,_ ,., JllJ 1.

When the legal representatives of the deceased were appellant and the surviving appellants negli-gent in not taking steps for substitution, the Court is not to exercise its discretion in favour of such 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 appel-late Court and another to the contrary effect by the Court below which has attained finality consequent on the abatement of so far as the appeal in they are concerned. This is always avoided.Rule 33 deals with matter different from the of 0. XXII and DO matter dealt with by r. 9 ques-tion of its provisions overriding those of r. 9 of O.XXII or vice versa arises.

In Mahomed Khaleel Shirazi &i Sons v. Les Tanneries Lyonnaises (') it was held that 0. XLI, r. 33 was not intended to apply to an appeal which was not competent appeal against party under the Code or under the Letters Patent of the High Court. This principle applies with equal force in case. the present The appeal by the surviving appel-lants 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 survi-ving appellants when the appeal by Kedar Nath had (I) 6S ,, ... 8to

SUPREltfE COURT REPORTS [1964] VC>i,

abated as all the appellants had common right and interest in getting decree of ejectment against defendant No. 2 and such decree cmdd have been on ground common to all of them. The defen-dant cannot be ejected from the premises when he has right to remain in occupation of the premises on the basis of the decree holding that Kedar Nath, one of in the persons having joint interest 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 tenant of the others when all of them had joint right to eject him or to have him as their tenant.

R-.uh•ar Praatl •• M/1. Shyom B1hori/a/ l•:annatli Ratiub., J.

We, therefore, dismiss the appeal with costs.

Appeal dismissed.

WESTERN INDIA MATCH CO. LTD.

/9f, J Moy3. v.

THEIR WORKMEN

. (P. B. GAJENDRAGADKAR, K. N. WANOHOO, and K. C. DAS GUPTA JJ.)

Industrial Displlie-Production bonus scheme-Made applicable onlv to workmen in factory-Olaim by workmen of sales office-Sales office and factory whether part of same unit of industrial production-Inspectors, salesmen and retail salesmen, whether workmen-U. P. Industrial DiBputes Act, 1947 (U.P. 28 of 1947).

The appellant company was engaged in the manufacture and sale of matches in four places in India, including Bareilly, in which there were factories as well as sales offices. As an ince'Dtive to larger production of matches the company intro-duced In 1945 Production Bonus Scheme which was made