ANANT A SHETTY Vs. G L SHAH

JUDGEMENT

(1.) An open space measuring 12' x 20' was the subject-matter of a suit lor possession. The owner of the site is admittedly the first defendant. He denied the claim of the plaintiff and supported the.case of the second defendant who is the petitioner before me. It is not necessary to refer to the rival claims of the parties. Suffice it to state that the suit was decreed by the trial Court. The second defendant alone appealed against the said ,decree, impleading the plaintiff as the sole respondent. When the appeal was taken up for hearing pursuant to the remand order made by this Court in RSA. No.727 of 1970, the plaintiff filed IA. No.I contending that the appeal could not be heard as barred by res judicata. The appellant then filed IA. Nos. II and III seeking to implead the legal representatives of defendant 1, since deceased, as party respondents to the appeal. All these applications were together considered by the appellate Court and by order dated 31st May 1975, it allowed IA. NO. I and dismissed IA. Nos. II and III. The appellate Court has held that since the appellant was claiming his tenancy rights only through defendant 1 or defendants 3 to 5, and since they were not impleaded as parties to the appeal, the decree of the trial Court could not be set aside. So observing the appellate Court held that there was no need to hear the appeal on merits. Challenging the legality of the decision taken by the appellate Court, defendant 2 has preferred the revision petition.

(2.) Before going into the contentions on the merits, it is necessary to dispose of the preliminary objection raised by the respondents as to the maintainability of the revision. It was urged that the petitioner ought to have preferred a second appeal against the order of the appellate Court as the appellate Court ia effect, has dismissed the appeal. I do not think that there is any substance in the objection. The appellate Court has refused to hear the appeal stating that there is no necessity to hear the appeal since the decision of the trail Court has become res judicata against the appellant therein. The question of res judicata is a question relating to jurisdiction of the Court and, therefore, could be challenged under Sec. 115 of the Code of Civil Procedure.

(3.) On the merits the primary question for consideration is whether the appellate Court could give relief under Order 41 Rule 4 of the Code of Civil Procedure in the appeal against a common decree for possession wherein the non-appealing defendants were not even impleaded as parties to the appeal. Mr. Tarakaram contended that since the decree against the defendants was joint and binding On defendant 1 and defendants 3 to 5, the appellate Court has no power to vary the decree in their absence. In support of his contention, he placed reliance on the decision of the Privy Council in V. P. R. V. Chockalingam Chetty v. Seethai Ache AIR. 1927 PC. 252.. In that case, the trial Court dismissed the suit for setting aside the sale holding the sale deed to be valid as between defendant 1 and the plaintiff. In appeal, the plaintiff impleaded the subsequent purchasers as respondents, but not defendant 1. It was held that the finding as to validity of the sale deed was res judicata as between the plaintiff and defendant 1 and also as against the subsequent purchasers. Similar was the view taken by the Madhya Bharat High Court in Chunnilal v. Jenwardas AIR. 1952 MB. 164., in which the facts were in close parallel with those in Chockalingam's case.(l) . But, I do not think that the view taken in those decisions is of any assistance to the preent case. The facts of those cases are far removed from the facts of the present case. Besides, the scope of Order 41 Rule 4 was also considered in those decisions. Mr. Tarakaram next placed reliance on the decisions of the Lahore High Court and Andhra Pradesh High Court to reinforce his contention that Rule 4 of Order 41 cannot be extended to a case where the non- appealing plaintiff or defendant as the case may be, has not been impleaded as party to the appeal. (See (i) Nanak v. Ahmad Ali (F.B.) AIR. 1946 Lah. 399(FB) and (ii) Venkata Ram Rao v. Narayana (F.B.) AIR. 1963 AP. 168(FB). It seems to me that it is unnecessary to consider the principles stated in the aforesaid two decisions. Prior to the decision of the Supreme Court in Karam Singh v. Pratap Chand AIR. 1964 SC. 1305., there was some conflict of judicial opinion in the High Courts On the question whether the power under Order 41 Rule 4 may be exercised where all the parties against whom a decree is passed on a ground which is common to them are not impleaded in the appeal. The Supreme Court in the Karan Singh's case(5) has not approved the line of reasoning that Order 41 Rule 4 cannot be invoked where such parties are not impleaded in the appeal. In that case, a landlord of certain premises filed an action for ejectment against the tenant and sub-tenant on the ground that the tenant had sublet the premises without the landlord's consent. The trial Judge decreed the suit holding that the landlord had not acquiesced in the subletting. The sub-tenant alone appealed against the said decree. The appellate Judge set aside the order of the trial Court. In the appeal before the Supreme Court, it was urged that the First Appeal by the sub-tenant was incompetent because the tenant against whom a decree in ejectment was passed had not appealed. On certain questions which are not material for our purpose, there was difference of opinion between Sarkar, J. on the One hand and S. K. Das, Actg., CJ, and Hidayathullah, J, on the other; but the Court has unanimously held that the first appeal preferred by the sub-tenant was maintainable even though the tenant had not appealed against the order of the Court of first instance. Sarkar, J. at page 1313, paragraph 23, observed: The suit had been filed both against the tenant and the subtenant 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 appellant 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. It is seen from the above decision that the judgment 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. The principles stated therein have been followed in a subsequent decision of the Supreme Court in Ratan Lal Shah v. (Firm) Laiman Das AIR. 1970 SC. 108. Shah. J., (as he then was), speaking for the Court, observed at page 109: 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." In that case the suit was filed against the partnership firm through its partners M and R for a decree for value of goods supplied by the plaintiffs to the firm. In that suit R denied liability. M by a separate statement admitted that the goods were supplied but submitted that he was liable only for one-fifth of the amount claimed. The claim of plaintiffs was decreed in its entirety against M and R and the partnership firm. alone appealed to High Court of Allahabad denying liability for the claim of plaintiffs in its entirety. M was impleaded as second respondent but the notice of appeal was not served on M. On the contention that the appeal was not maintainable and could not be disposed of since the notice of appeal was not served on M this is what the learned Judge observed at page 110: But in the appeal filed by R, there is no possibility f a decree being passed which may impose a more onerous liability upon M. The trial Court has passed a decree against R and M jointly and severally. M is liable for the full amount of the claim of the plaintiffs. If the appeal filed by R succeeds, the Court may reduce the liability of M, but there may conceivably be no order by the Court operating to the prejudice of M in the appeal. "The decree of the Trial Court proceeded on a ground common to M and R. In the appeal filed by R he was denying liability for the claim of the plaintiffs in its entirety. This was essentially a case in which the Court's jurisdiction under Order 41, Rule 4, Code of Civil Procedure could be exercised. From the above decision it appears for the application of Order 41 Rule 4, the non-appealing defendant in a decree passed on. a common ground, is not a necessary party in the appeal and even if he has not been impleaded as a party-respondent, the appellant is entitled to an appropriate relief under Order 41 Rule 4. Order 41 Rule 4 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 vary the decree in favour of all the plaintiffs or defendants, as the case may be. The object of the rule, as observed by the Supreme Court in Raton Lal's case(6) was 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 having the same interest as the appellant. To say that the non-appealing defendants should be impleaded as necessary parties in the appeal, would be, in my opinion, introducing an element which is neither contemplated nor warranted under Order 41 Rule 4. In the instant case, there cannot be any dispute that the contentions raised by defendant 1 and defendant 2 or defendants 3 to 5 proceeded n a common ground, that is, the suit premises which were leased to defendant 2 were not the subject matter of the lease in favour of the plaintiff. That contention has been negatived by the trial Court. Defendant 2 is therefore entitled to appeal against that decree and if he succeeds in the appeal there would not be any prejudicial order so far as the non-appealing defendants, are concerned. There is, therefore, no question of res judicata operating as against the appellants. The view taken by the appellate Court is clearly erroneous and cannot be supported.