# Mohomed Khaleel Shim & Sona v. Lu Tanneriea, 53

- **Citation:** [1964] 3 S.C.R. 549
- **Court:** Supreme Court of India
- **Decided:** 1964
- **Bench:** K. SmrnA RAo, Raghubar Dayal, J. R. MunHoLXA.R
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mohomed-khaleel-shim-sona-v-lu-tanneriea-53-3004
- **Pages:** 12

## Headnote

-Oivil Procedure-Joint tkme-A.ppeal filed jolnllyDw.th of one appellant-Failure to add kual repruB111<di11BBM 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 a suit for ejectment
and recovery of rent Against two defendants and obtained a
decree, but on appeal, the DistrictJudge set aside the decree
against defendant No. 2. The plaintifl's then filed a second
appeal in the High Court on February 29, 1952, and while the
appeal was pending K c!ied on September 8, 1955. No application 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, a 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·
.
.
'
""' $,
550
SUPREME COURT REPORTS [1964] VOil..
J9fij
lants could not be said to have filed the appeal as represeatRcaubJor Prasad
ing K.
•
•·
.
(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 a 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.
floghut111 D•μI 11
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 respondent No. I.
·
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.
3 s.c.R. SUPREME C

## Text

a s.c.R..
SUPRBNIB C0URT RBP0RTS
fi4,9
RAMESHWAR PRASAD AND OTHERS
tJ,
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 jolnllyDw.th of one appellant-Failure to add kual repruB111<di11BBM 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 a suit for ejectment
and recovery of rent Against two defendants and obtained a
decree, but on appeal, the DistrictJudge set aside the decree
against defendant No. 2. The plaintifl's then filed a second
appeal in the High Court on February 29, 1952, and while the
appeal was pending K c!ied on September 8, 1955. No application 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, a 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·
.
.
'
""' $,
550
SUPREME COURT REPORTS [1964] VOil..
J9fij
lants could not be said to have filed the appeal as represeatRcaubJor Prasad
ing K.
•
•·
.
(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 a 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.
floghut111 D•μI 11
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 respondent No. I.
·
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.
3 s.c.R. SUPREME COURT RBPORT8
551
persons, including Kcdar Nath, instituted a suit for
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 prayed 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 dismissed 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, a preliminary objection was taken for tl!c
'
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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
a joint Hindu family and other members of the
family were already on the record and that it was
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 affidavit stating that the deceased was a 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 properties 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.
A counter-affidavit was filed stating that
the allegations in para 9 of the affidavit were misleading, that there was no allegation in the affidavit_
that the family was a joint Hindu family and that
the true facts were that the family of the plaintiffsappellants was not a 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
property in dispute was not joint-family property or
even joint property. A rejoinder affidavit was then
filed by Sri Narain, general agent of the appellants
stating that the aforesaid statements in the counteraffidavit were misleading and irrelevant and reaffirming 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.
-
3 S.C.R.
SUPREME COURT REPORTS
553
At t:he hearing or the appeal or the surviving
appellants, the only point which was urged for
consideration seems to have been that the surviving
appellants were 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
appellants and the deceased appellant were joint and
indivisible and as in the event of the success of the
appeal there would be two inconsistent and contradictory 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 a joint Hindu family and the
surviving plaintiffs could continue the appeal. The
second point is
that if the provisions of r. 3
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 appellant and the surviving appellants constituted a joint
Hindu family. They clearly indicate that the affidavits filed on behalf of the appellants made no
averment that Kedar Nath and the surviving appelLlnts formed a joint Hindu family, even though
time had been given to them for filing an affidavit
stating such a fact. The inference is obvious, and
II, 1.1..a. [19531 AU,•"•
t2> 1,1>,ll; 19 l'•t. 87t,
196§
lt.1U1t1s!iU1or Pruotl
••
M/s. Shy.,. •1hllfillll
JaglUIMth
R•tlw6ar DtJyllJ /.
lttltlllJ,..., p,.,.,
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Alf" I'- SWril.t
·-lh
554 SUPREME COURT REPORTS [1964] VOL.
is that these people did not form a joint Hindu
family as alleged by the respondents.
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 a 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 a
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 surviving 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 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 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
555
decree. The aecond appeal filed in the High Court
was not filed by any one or by even some of the
plaintiffs as 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.
.
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 the appeal abated so
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 that any one -0f the plaintiffs or
defendants: in filing such an appeal, represents all
the other non-appealing plaintiffs or defendants as
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 a ground common
to all of them. Kedar Nath was alive when the
appeal was filed and was actually one of the appellants. 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 a
qecree iq favour of
representatives of the
"-'""'- ,,.. ..
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ll<J.ol J.
r
,
v.". ·
.
·W /s •. Shyam Behari/ol
Jagarinatlr:
'556 SUPREN1'.E COURT REPORTS [1964] VOL.
deceased Kedar Nath on hearing .. an appeal by the
surviving appellants even 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 a 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 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."
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 appellant .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
55,
different contingencies. There is nothing common
in. their provisions which make the provisions of one
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 proceeds on a 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. Narayana ('); Sonahar AU v. Mukbul AU (8). The Bombay,
Calcutta and Madras High Courts have taken a
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 a 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
have been passed or made and to pass or 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
. (I) I.L.R. [1953] 2 All. 434.
t2) I.L.R. 15 Lab. 667.
<S) I.I.R. (1953)2 All. 4M.
(4) I.I.R. 1946 Lah; 399 •
. (51 I.I.It. M.P. 21. ·
(6) A.I.R. 1959 ()riua HS.
(7) AJ,ll. 1963 A,P, 168.
(8) AJ.lt, 1956 Am.m 16f.
(9) l;b;lt; 19'5
16
( 10) I.LR; 61 Cal; 1179.
(11) r,ri.a,
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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·respondents 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
Appellate Court may pass a decree or make an order
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 passed 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 appellant. It further empowers the Appellate Court to
pass or make such further or other decree or Order
as the case may require. The Court is thus given
wii:{e discretion to pau such decrees and Orders as
'
3 S.C.R.
COURT REPORTS 559
the interests of justice demand. Such a power is to
be excercised in exeptional cases when its non-exercise will lead to difficulties in the adjustment of
rights of the various parties.
A case like the present
is not a case of such a kind.
When the legal representatives of the deceased
appellant and the surviving appellants were negligent in not taking steps for substitution, the Court is
not to exercise its discretion in favour of such a
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 appellate Court and another to the contrary effect by the
Court below which has attained finality consequent
on the abatement of the appeal in so far as they are
concerned. This is always avoided.
Rule 33 deals with a matter different from the
matter dealt with by r. 9 of 0. XXII and DO question 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 a competent appeal against a party under
the Code or under the Letters Patent of the High
Court. This principle applies with equal force in
the present case. The appeal by the surviving appellants 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 surviving appellants when the appeal by Kedar Nath had
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M/1. Shyom B1hori/a/
l•:annatli
Ratiub.,
J.
/9f, J
Moy3.
SUPREltfE COURT REPORTS [1964] VC>i,
abated as all the appellants had a common right
and interest in getting a decree of ejectment against
defendant No. 2 and such decree cmdd have been
on a ground common to all of them.
The defendant cannot be ejected from the premises when he
has a right to remain in occupation of the premises
on the basis of the decree holding that Kedar Nath,
one of the persons having a joint interest in 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 a tenant of the
others when all of them had a joint right to eject
him or to have him as their tenant.
We, therefore, dismiss the appeal with costs.
Appeal dismissed.
---
WESTERN INDIA MATCH CO. LTD.
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 introduced In 1945 a Production Bonus Scheme which was made
•