# RATAN LAL v. LAL MAN DAS (Shah, /.)

- **Citation:** [1970] 1 S.C.R. 296
- **Court:** Supreme Court of India
- **Decided:** 1969-04-15
- **Case number:** ; Civil Appeal No. 1019 of 1966
- **Bench:** J. C. SHAH Am> G. K. MITTER
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ratan-lal-v-lal-man-das-shah-4757
- **Pages:** 5

## Headnote

B
Civil Procedure Code, 1908 Ord.,. 41 Rult 4--Jo/nt dKrtt against two
persons-Ap~a/ by only ont person-Whtthtr apptal court can txcrciu
jurisdiction undtr 0. 41 r. 4.
The respondent obtained a joint decree apinst the appellant
and
his partner M. Apinst the decree, the appellant alone appealed to the
Hlsh Court.
M was impleaded u the leC01ld respondent lo the appul.
ThO notice of appeal sent to M wu returned unserved. The HJ&h Coon
C
dlsmiued the appeal on the view that aincc there wu a joint decree aplnat
the appellant and M lo a suit foUDded on a joint cause of actioo and the
decree apinst M had become ftnal, the appellant could not claim to be
beard on his appeal; if he was heard there could be two conllictin& dccilioas between the same parties and in the same suit bated on the same
cause of action. The High Court a!Jo held that the appellant had not taken
steps to serve M and the appeal must be dismissed for want of prosecution.
D
On appeal to this Court
HELD : The judgment of the High Court could not be su.taioed.
The appeal could not be dism"9ed on the ground that M was not
served with the notice of appeal, nor, in view of the proviJioos of Order
41 Ruic 4, could the High Court diuniss the appeal on the ground that
there was a possibility of two confiicting decrees. [2,7 0-HJ
J!'
The object of the rule is 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. 1be Court in such an appeal ma•
reverse or vary the decree in favour of all the parties who are in <be
same interest as the appellant.
[298B]
Karam Singh Sobti and Anr. v. Shri Pratap Chand and Anr, (1964)
F
4 S.C.R. 647, explained and followed.

## Text

RATAN LAL SHAH
~.
FIRM LALMANDAS CHHADAMMALAL a ANR.
April 15, 1969
[J. C. SHAH Am> G. K. MITTER, JJ.]
B
Civil Procedure Code, 1908 Ord.,. 41 Rult 4--Jo/nt dKrtt against two
persons-Ap~a/ by only ont person-Whtthtr apptal court can txcrciu
jurisdiction undtr 0. 41 r. 4.
The respondent obtained a joint decree apinst the appellant
and
his partner M. Apinst the decree, the appellant alone appealed to the
Hlsh Court.
M was impleaded u the leC01ld respondent lo the appul.
ThO notice of appeal sent to M wu returned unserved. The HJ&h Coon
C
dlsmiued the appeal on the view that aincc there wu a joint decree aplnat
the appellant and M lo a suit foUDded on a joint cause of actioo and the
decree apinst M had become ftnal, the appellant could not claim to be
beard on his appeal; if he was heard there could be two conllictin& dccilioas between the same parties and in the same suit bated on the same
cause of action. The High Court a!Jo held that the appellant had not taken
steps to serve M and the appeal must be dismissed for want of prosecution.
D
On appeal to this Court
HELD : The judgment of the High Court could not be su.taioed.
The appeal could not be dism"9ed on the ground that M was not
served with the notice of appeal, nor, in view of the proviJioos of Order
41 Ruic 4, could the High Court diuniss the appeal on the ground that
there was a possibility of two confiicting decrees. [2,7 0-HJ
J!'
The object of the rule is 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. 1be Court in such an appeal ma•
reverse or vary the decree in favour of all the parties who are in <be
same interest as the appellant.
[298B]
Karam Singh Sobti and Anr. v. Shri Pratap Chand and Anr, (1964)
F
4 S.C.R. 647, explained and followed.
CIVIL APPELLATE JURISDICTION; Civil Appeal No. 1019 of
1966.
Appeal by special leave from the judgment and decree dated
July 10, 1963 <'f the Allahabad High Court in First Appeal No.
16 of 1953.
G
C. B. Aganvala and K. P. Gupta, for the appellant.
B. C. Misra, 0. P. Gupta, Ram Parkash Agarwal and Sultan
Singh, for respondent No. I,
The Judgment of the Court was delivered by
Shah, J, Firm Lalmandas Chhadammalal-hereinafter called
'the plaintiffs'-<:ommenccd an action against "Mohan Singh Ratan
Lal, through its partners Mohan Singh and Ratan Llll", in the
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RATAN LAL V. LAL MAN DAS (Shah, /.)
297
Court of the Senior Civil Judge, Nainital, for a decree for
Rs. 12,88"3/- and interest thereon for value of goods supplied.
Ratan Lal denied liability for payment of the amount claimed.
Mohan Singh by a separate written statement admitted that g?<Jds
were supplied by the plaintiffs to the firm, but submitted that he
was liable only for one-fifth of the amount claimed. The Trial
Judge decreed the claim of the plaintiffs in its entirety against
"Mohan Singh ·aaid Ratan Lal and the firm known as Mohan Singh
Ra tan Lal".
Against the decree, Ratan Lal alone appealed to the High
Court ot Allahabad. Mohan Singh was impleaded as the secoild
respondent in the appeal.
The notice of appeal sent to Mohan
Singh was returned unserved and an application made by· counsel
for the appellant to serve Mohan Singh "in the ordinary course
as well as by registered post" was not disposed of by the Court.
On July 9, 1963 Ratan Lal applied that it was "detected that there
had been no service of the notice of appeal upon Mohan Singh
and it was essential for the ends of justice that notice of appeal
may be served upon Mohan Singh". The Court by order dated
July 10, 1963, rejected the application and proceeded to hear the
appeal.
The Court was of the view that since there was a joint
decree against Ratan Lal a.nd Mohan Singh in a suit founded on
a joint cause of action and the decree against Mohan Singh had
become final, ·Ratan Lal could not claim to be heard on his appeal.
The High Court observed :
"Lf we hear him (Ratan Lal) the result may be that
on the success of his appeal there will be two co:nflicting
decisions between the same parties in the same suit
based on the same cause of action. Furthermore, the
appellant has not taken steps to serve the second respondent (Mohan Singh) and the appeal must be dismissed
for want of prosecution.
On both these grounds we
dismiss this appeal."
Against the order passed by the High Court, this appeal has been
preferred with special leave.
In our view the judgment of the High Court cannot be sus·
tained'.
The appeal could not be dismissed on the ground that
Mohan Singh was not served with the notice of appeal, nor could;
the appeal be dismissed on the ground that there was a possibility
of two conflicting decrees.
Order 41 r. 4 of the Code of Civil
Procedure provides :
"Where there ·are more plaintiffs or more def.endants
than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all
298
SUPREME COlJAT REPORTS
[ 1970] I S.CR.
the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon
the Appellate Court may reserve or vary the decree in
favour of al! the plaintiffs or defendants, as the case may
be."
The object of the rule is to enable one of the parties to a suit to
obtain relief in appeal when the decree appealed Crom proceeds
on a ground common to him and others.
The Court in such an
appeal ma} reserve or vary the decree in favour of all the parties
who are in th~ same interest as the appellant.
There wa~ some
conflict of judicial opinion in the High Courts on the question
whether power under 0. 41 r. 4 of the Code of Civil Procedure
may be exercised where all the parties against whom a decree is
passed on a ground which is common to them are not impleaded
m the appeal.
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.
It is, however, unnecessary to examine those decisions for, in our
judgment, the question has been considered by this Court in Karam
Singh Sobti and Anr. v. Shri Pratap Chand and Anr.( 1).
In
that case a landlord of certain premises filed an action in ejectment
against the tenant and the sub-tenant in respect of premises on the
ground that the tenant had sub-let the premises without the landlord's consent. The Trial Judge decreed the suit holding that the
landlord had not acquiesced in the sub-letting.
The sub-tenant
alone appealed to the Additional Senior Subordinate Judge who
set aside the order of the Trial Court. It was urged before this
Court that the appeal by the sub-tenant to the Subordinate Judge
was incompetent, because the tenant against whom a decree in
ejectment was passed had not appealed.
On certain questiClillS
which are not material for the purpose of this judgment, there was
difference of opinion between Sarkar, J., on the one hand, and
S. K. Das, Acting C.J., and Hidayatullah, J., on the other, but
the Court unanimously held in that case that the appeal was maintainable before the Subordinate Judge, eventhough the tenant had
not appealed against the order of the Court of First Instance.
Sarkar, J., observed at p. 663 :
"The suit had been filed both a~ainst the tenant and
the sub-tenant, 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 appel-
(I) [196•14 5.C.R. 647.
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RATAN LAL· V, LAL MAN DAS (Shah, J,)
299
!ant 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 subletting by the Association to him. He could challenge
that decree on any ground available.
The lower appellate Court was, therefore, quite compe~ent 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."
With that view S. K. Das, Acting C.J., and HidayatuUah, J.,
agreed : see p. 652.
It is . true that in that case the tenant was
made a party to the appeal before the Subordinate Judge.
But
the judgment of the Court 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.
Counsel for the plaintiffs contended that the appeal filed by
Ratan Lal if it be heard may possibly result in an order which
may prejudicially affect Mohan Singh, and if Mohan Singh has no
opportunity of being heard no decree may be passed against him,
for to do so would be contrary to the fundamental rules of natural
justice. But in the appeal filed by Ratan Lal there is no possibility
of a decree being passed which may impose a more onerous liability
upon Mohan Singh.
The Trial Court has passed a decree against
Ratan Lal and Mohan Singh jointly and severally.
Mohan Singh
is liable for the full amount of the claim of the plaintiffs. If the
~al filed by Ratan Lal succeeds, the Court may reduce the
liability of Mohan Singh, but there -may conceivably be no order
by the Court operating to the prejudice of Moh~ Singh in the
appeal.
It was also urged by counsel for the plaintiffs that Ratan Lal
had been negligent in the High Court in prosecuting the appeal,
G
and it would be putting a premium upon his negligence to allow
him now to pro~ute the appeal. It is not possible on the record,
as it stands, to say whether failure to serve notice of appeal upon
Mohan Singh was wholly attributable to the negligence ol Ratan
Lal.
But even if it be assumed that he was negligent, on that
ground he cannot be deprived of his legal right to prosecute the
H
appeal and to claim relief under 0. 41 r. 4 of the Code of Civil
Procedure, 4f the circumstances of the case warrant it.
The decree
of the Trial Court proceeded on a ground common to Mohan Singh
·3illd Ratan Lal. In the appeal filed by Ratan Lal he was denying
300
SUPREME COURT REPORTS
[1970) I s.c.R.
liability for the claim of the plaintiffs in its entirety. This was
essentially a case in which the Court's jurisdiction under 0. 41
r. 4 Code of Civil Procedure could be exercise<!.
The appeal is allowed and the decree passed by the High Court
is set aside.
The proceedings are being remanded.
The High
Court will admit the appeal in its original number and hear and
dispose it oi according to law.
There will be no order as to costs
in this Court of this appeal. In view of the fact that there has
been some negligence on the part of Ratan Lal to prosecute the
aiipeal in the High Court, we direct that he will pay the costs of
the appeal in the High Court in any event.
R.K.P.S.
Appeal allowed.
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