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Letters Patent Appeal No. 2 of 1960, decided on 12th December 1962.
Scope of rule very wide‑Court can vary or reverse decree or order even in favour of party failing to prefer appeal or cross‑objection.
Subramanian v. Sinnamal A I R 1930 Mad. 801 and Rupjan Bibee v. Abdul Kadir Bhuiya and others I L R 31 Cal. 643 rel.
P.K. De for Appellant.
A. M. Fazlul Wahab for Respondents.
M. A. Aziz for the Deputy Registrar.
This Letters Patent appeal is by defendant No. 2, Hamijan Bibi, and it arises out of a suit by the plaintiff‑respondent Darog Ali for the declaration of his title to the extent of six pies share in the suit land and also for khas possession of the same.
2. The plaintiff's case is that the lands described in the schedule of the plaint belonged to two brothers Jhamor and Naji in equal shares. After the death of Naji his share devolved on his heirs, viz. a son defendant No. 1 Ramjan, Bibi, wife of Baherjan and another daughter Saberjan. Baherjan died first and was followed by daughter Saberjan, who left her husband plaintiff Darog Ali and sons, proforma defendants Minhajuddin and Mafizuddin as her heirs. It is alleged in the plaint that the defendants 6 to 8 are purchasers from defendant No. 2 Hamijan, and defendants Nos. 3 to 5 and 9 to 26 are heirs of Jhamor. The plaintiff's title to the land having been denied and possession resisted, as already stated, this suit was instituted.
In the trial Court, defendant No. 1 Ramjan asserted that Saberjan was only a foster daughter of his father Naji. On the evidence adduced before the trial Court it was found by that Court that Saberjan was a daughter of Naji and inherited his property and after her death, her share in the suit land devolved on her heirs and her husband plaintiff was entitled to six pies share in the said property and a declaration of his title to that effect was made by the trial Court. Defendants 2 to 6 filed a separate written statement asserting that they did not dispossess the plaintiff and were not liable for costs. On the question of recovery of khas possession, the trial Court, therefore, expressed itself in the following terms
"But he cannot get khas possession as the suit is framed without a suit for partition. I find him entitled to ejmall possession only.
Admittedly defendants Nos. 2 to 6 did not dispossess or question his title. So there is no case against him."
The trial Court accordingly decreed the suit on contest against defendant No. 2 with costs and ex parte against the rest except defendants 2 to 6 against whom it was dismissed. The Court declared the plaintiffs six pies share in the suit land and gave a decree for ejmall possession.
3. Defendant No. 1 alone preferred an appeal to the District Judge against the said decree of the trial Court.
4. It may be stated here that there was no cross‑appeal or cross‑objection on behalf of the plaintiff‑respondent Darog Ali before the learned District Judge who confirmed the findings to the effect that Saberjan was a daughter of Naji and that the plaintiff Darog Ali was entitled to six pies share and upheld the decree made in favour of the plaintiff. He, however, set aside the order of dismissal of the suit against defendants Nos. 2 to 6 and he accordingly modified the decree.
5. Defendant No. 2 Hamijan preferred a second appeal to this Court against this order of the District Judge and the only point raised was that the learned District Judge had no jurisdiction to set aside the order of dismissal of the suit in so far as it related to defendants 2 to 6 in the absence of a cross‑appeal or cross -objection by the plaintiff himself.
6. The learned Single Judge, Rahman, J. (as his Lordship then was) in disposing of the second appeal took the view that rule 33 of Order XLI of the Code of Civil Procedure gave the Court of appeal ample powers to modify the decree in exercise of the discretion vested in it for the ends of justice and the discretion in this case was judicially exercised. The second appeal was accordingly dismissed with costs.
7. As against the said order of dismissal of the second appeal, this appeal has been preferred under Clause 15 of the Letters Patent.
8. Mr. P. K. De, learned Advocate for the appellant Hamijan submits that the learned District Judge has acted without jurisdic tion in modifying the decree in favour of the plaintiff‑respondent in the absence of a cross‑appeal or a cross‑objection on his behalf specially when the learned District Judge has made no order in favour of the appellant. According to him, rule 33 of order XLI of the Code of Civil Procedure authorises adjustment of the rights of respondents or other parties only when an order has been made giving some relief to the appellant.
9. The learned Advocate for the appellant has placed his reliance on the following passage occurring in the decision of the Calcutta High Court in the case of Gangadhar Muradi and another v. Banabashi Padihri and others.
"No hard and fast rule can be laid down ; but I think it may be said that ordinarily the power contained in rule 33 should be limited to those cases, where as the result of the appellate Court's interference with the decree in favour of the appellants, further interference is required in order to adjust the rights of the parties in accordance with justice, equity and good conscience."
10. The learned Advocate, therefore, claims existence of the limitation as indicated above in exercising the discretion conferred by the said rule 33 of Order XLI. As we proceed to examine the said rule, we cannot lose sight of the fact that the learned Judge's observation itself is qualified by word ordinarily'. This indicates that there is no absolute statutory prohibition but what is suggested is that interference under the said rule 33 may be made when some relief is granted to the appellant is the adjustment of rights if parties are found necessary. Moreover, it should also be remembered that the learned Judges themselves have said that no hard and fast rule can be laid down. They have, therefore, observed that the rule is to be applied with discretion.
11. Reliance has also been placed by the learned Advocate on another decision of the Calcutta High Court in the case of Abjal Majhi and others v. Intu Bapri reported in the same volume of the Calcutta Law Journal at page 391 which appears to support the views expressed in Gangadhar Muradi's case.
12. Mr. De further calls in aid of his contention, Full Bench decision of the Allahabad High Court in the case of Rangom Lai and another v. Jhondu (I L R 34 All. 32). In that case the learned Judges while recognising that the object of the rule 33 is manifestly to enable the Court to do complete justice, appears to have put a limitation by giving an example of exercise of such powers. According to the learned Judges an occasion for exercise of such powers may arise when it may appear to be essential that in order to grant relief to the appellant, some relief should also be given to the respondent even in the absence of cross‑appeal or cross‑objection. We must, however, say that the example as given above is by no means exhaustive but illustrative.
13. The question raised and arguments advanced in the light of the authorities cited above, require a close examination of the material part of the said rule 33 of Order XLI which is in the following terms :‑‑
"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 to make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the 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."
The rule is couched in very wide terms and we do not find words of limitation in the said provision as contended by the learned Advocate for the appellant. The Legislature has left the power conferred by the rule to the discretion of the Court to be exercised on sound judicial principles. In dealing with the question of exer cising of a discretion, in the case of Sasannah Sharop v. Wakefield and another (1891 A C 173). Halsbury L. C. observed : "It is to be, not arbitrary, vague and fanciful, but legal and regular." Keeping these principles in view, rule 33 may be availed of by an appellate Court if necessary in the ends of justice. It may, therefore, be said that it is not mandatory but discretionary in its application and it should be exercised with due care and caution.
14. We repeatedly asked Mr. De to point out words of limitation in the statute, He cited some cases which are all specific cases on peculiar facts of those cases and nowhere in any one of them any general proposition of law limiting the operation of the rule has been laid down. He invited us to assume limitation as envisaged in the aforesaid cases cited by him. We have no hesitation to say that in accordance with the well‑laid judicial principles of interpretation, we are unable to read words when they are absent from the statute.
15. On a scrutiny of the said rule 33, we find that it provides that the appellate Court shall have powers to make an order which ought to have been passed by the Court appealed from. In this case, it is not contended by the learned Advocate for the appellant that the order as made by the learned District Judge is one which the Court of first instance should not have made. The rule clearly lays down that the powers as contemplated 8 above may be exercised whether or not the appeal is with regard to a part only and that such an order may be made in favour of the respondents or parties although they may not have preferred any appeal or objection. Mr. De's contention that in the absence of an appeal or objection, the appellate Court cannot grant any relief is negatived by the presence of the words may be exercised in favour of all or any of the parties although such respondents or parties may not have filed any appeal or objection' in the said rule 33 itself. The point raised by Mr. De has, therefore, no substance.
16. The views we have expressed above find support in a Full Bench decision of the Madras High Court in the case of Subramanian v. Sinnamal (A I R 1930 Mad. 801). To the same effect is also the Full Bench decision in the case of Rupjan Bibee v. Abdul Kadir Bhuiya and others (I L R 31 Cal. 643).
17. We would also like to say that the aforesaid Full Bench case of the Allahabad High Court reported in 34 All. 32 on which Mr. De placed great reliance came to be considered by the Division Bench decision of that Court in the case of Hira Lai v. B. Firangi Lai and another (A I R 1955 All. 562), and it was held that the powers conferred by the rule 33 of Order XLI on an appellate Court are very wide and the decision in the Allahabad Full Bench case reported in 34 All. 32 was based on the particular facts of that case and, therefore, it could not have the effect of curtailing the powers given to an appellate Court under the said rule.
18. Scope of rule 33 of Order XLI also came to be considered by the Federal Court of India in the case of Sir Hari Shanker Paul and another v. Anath Nath Mitter and another (1949 F C 106), and the following observation of the learned Judges fully supports our views expressed above :‑
"As regards the second point raised by the appellants, it cannot be disputed that in a proper case the appellate Court can, under the provision of rule 33, Order XLI, Civil P. C., vary or reverse a decree or order of the Court below even in favour of a party who has not preferred any appeal or cross‑objection. These powers indeed should be cautiously used with due regard to the circumstances of each individual case, but no rigid rule can be laid down fettering the discretion of the Court in such matters which the Legislature has for best of reasons, left unfettered"
19. Rule 33 of Order XLI appears to have been framed on the basis of rule 4 of Order LVIII of the Rules of the Supreme Court of England which makes provisions for a Court of Appeal to amend, admit further evidence or draw inferences of fact.
Material part of the said rule 4 is in the following terms
" . . . The powers aforesaid may be exercised by the said Court, notwithstanding that the notice of appeal may be that part only of the decision may be reversed, and such powers may also be exercised in favour of all or any of the respondents or parties who may not have appealed from or complained of the decision. The Court of Appeal shall have such orders as to the whole or any part of the appeal as may be just."
20. Having regard to the similarity of the said Rules, the case of Attorney‑General v. Simption (1901 2 C D 671), is also an authority for the proposition that a Court of Appeal can make a proper order which ought to have been made by the Court of first instance although there may not be any cross‑appeal or cross‑objection by the party in whose favour the modification is made.
21. We must, however, make it clear that wide powers conferred by rule 33 of Order XLI involve a corresponding responsibility of exercising the same in extraordinary cases in the interest of justice. In this case we were satisfied that the discretion has been exercised judicially and in the ends of justice. Plaintiff obtained a declaration of his title and decree for joint possession obviously on the ground of his being a co‑sharer in the properties in question and unless he obtains a decree against defendants 2 to 6 who are also his co‑sharers, the decree already obtained by him will be futile if they oppose the plaintiff in joint possession in the absence of partition of the properties ; if he is forced to file such a partition suit, that suit is also liable to be dismissed for want of title against defendants 2 to 6.
For the reasons stated above, this appeal fails and is dismissed with costs. Hearing fee being assessed at five gold Mohurs.
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