The dispute relates to residential property measuring 19 marlas situated: in Village Bhadana, Tehsil Gujar Khan, District Rawalpindi. The vacant. Site of the property was owned by one Nek Alam father of respondent No. 1 who sold the same in favour of the appellant and respondents Nos. 2 and 3 by means of registered sale-deed dated 1st of March 1966 for a considera--petition of Rs. 600.00.
Respondent No. 1 brought a suit for possession through pre-emption against the appellant as well as respondents Nos. 2 and 3, on payment of consideration amount of Rs. 600.00. The appellant and respondents Nos. 2 and 3 opposed the suit and took the plea that they had purchased the open site some 20 years back and thereafter constructed the houses thereon at the cost of Rs. 6,000.00.
It was further pleaded that respondent No. 1 had given his consent to the sale which was oral. They further pleaded that Nek Alam father, of respondent No. 1 threatened them to drag them into unnecessary litigation. At this they paid him the amount of Rs. 600.00 to avoid litigation, but due to their ignorance the fact that the property in question was purchased by them 20 years back was not mentioned in the sale deed in question. It was further pleaded by them that the market price of the site was Rs. 4,000 and they had built a house: thereon at the cost of Rs. 6,000.00. The appellant and respondents Nos. 2 and 3 in their written statements further raised the plea that the suit filed against them was barred by time as the sale in respect of the property in question took place 20 years back. Better statements of the parties were recorded by the learned trial Court before framing the issues. Respondent No. 1 who was plaintiff before the trial Court stated on 11-7-1966 that the appellant had constructed his house eight years back on the land which he had not purchased from his father. He further stated that the appellant was relative of his father and on account of that he had raised the said constructions. Later on respondent No. 1 and respondents Nos. 2 and 3 made their statements before the trial Court on the basis of which compromise was effected between them. The suit of respondent No. 1 was decreed against respondents Nos. 2 and 3 accordingly, on the payment of Rs. 3,066.68 but the appellant did not compromise and resisted the suit. The following issues were framed by the learned trial Court.
(1) Whether the present sale-deed is in fact a confirmation of the sale of the site that took place some 20 years back ?
(2) Whether the suit is time-barred ?
(3) Whether the right of pre-emption of the plaintiff is superior to that of the vendees ?
(4) Whether the face-price mentioned in the sale-deed does not represent the original price of the suit-land ?
(5) What is the market price of the suit land and the building thereon ?
(6) Whether the defendants are entitled to the costs of the construction in case of decree ?
(7) Relief.
The learned trial Court decided issues Nos. 1 and 2 in favour of the appellant and held that the sale- deed executed in 1966 was nothing but confirmation of the previous sale effected 20 years back.
The cause of the sale having taken place 20 years back the suit was found to be barred by time.
The decision of the trial Court with regard to issues Nos.4 and 5 was that the price of the suit land was Rs. 600.00 while the price of the house built thereon was Rs. 4,000.00. The finding with regard to Issue No. 6 was also in favour of the appellant. The suit was dismissed by the trial Court because of his findings on issues Nos. 1 and 2.
2. Respondent No. 1 challenged the judgment and decree passed by the learned trial Court in appeal before the District Judge who accepted the same and set aside the judgment and decree passed by the trial Court. He further found respondent No. 1 entitled to a decree for possession of the remaining 1 /3rd of the site in question including the house built thereon on payment of Rs.
1,534. He also found that the sale deed Exh. P. 1 executed in 1966 did not contain any reference to the sale which allegedly took place 20 years back, therefore, the verbal contract, if any, was not admissible in evidence under the law.
3. The appellant before the learned lower appellate Court assailed the validity of the decree dated 31st of January 1967, whereby respondent No. .1 had been given 2/3rd of the property in question on payment of Rs. 3,066.68 on the ground that according to the sale-deed whereby the vacant site was sold is favour of the appellant and respondents Nos. 2 and 3 by Nek Alam father of respondent No. 1, share of respondents Nos. 2 and 3 in the property was 1 /2 and the decree was, therefore, wrongly awarded to the extend of 2/3 share of the said two respondents. This plea was, however, repelled by the learned District Judge on the ground that the appellant cannot be allowed to challenge the decree without filing the regular appeal against the same, and since this has not been done, therefore, he cannot do so in the present appeal before him. The appellant has now challenged the judgment and decree passed in appeal by the learned District Judge before the High Court.
4. The relevant provision to be examined in this regard is Order XLI, rule 33 of the C. P. C., which reads as follows :- "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 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.
According to law in a proper case the appellate Court can vary or reverse decree of lower Court even in favour of party failing to prefer appeal. It is empowered under Order .XLI, rule 33, C. P. C. To pass not only any decree or order which might have been passed but also such further or other decree or order as the nature of the case may require. The appellate Court can deal with the case in any way that appears to it to be equitable to all the parties concerned. For this purpose it is not necessary that the party claiming equitable relief has filed an appeal. Reference in this respect can be made to Court of Wards, Hyderabad v. Allahbachayo Khan and another (PLD 1964 Kar. 569 The facts of the said case are that decree for damages was passed not only against the appellant before the High Court but also against respondent No. 2, who did not file any appeal. It was urged before the learned Judges that in spite of the fact that no appeal was filed on behalf of respondent No. 2 the decree against it should be set aside. The main argument in this regard, advanced by the learned counsel appearing on behalf of the respondent, was that the liability of the respondent was co-extensive with the appellant. According to him the grounds on which the damages were claimed against the appellant and respondent No. 2 were common and, therefore, in case the decree of the subordinate Court was set aside against the appellant it should not be allowed to stand against respondent No. 2 as well. Reliance in this respect was placed by the learned counsel on the provision as contained in Order XLI, rule 33, C. P. C. This plea was accepted and it was held that the appellate Court was empowered to pass not only any decree or order which might have been passed, but also such further or other decree or order as the nature of the case may require.
It was considered a fit case in which in the interest of justice power under Order XLI, rule 33, C. P. C.
Should be exercised. The decree of the learned subordinate Court against respondent No. 2 was, therefore, set aside in spite of the fact that he had not filed any appeal.
5. The same point was considered in West Pakistan and Federation of Pakistan v. Sir Nawab Muhammad Farid Khan (PLD 1960 Pesh. 111In that case it was held as follows;----- " . . . . If there is before the Court a question which is common between the appellant present in Court and the absent party, if that question is decided in favour of the appellant present in Court, the decision will enure to the benefit of the absent party as well."
Hari Sankar v. Anath Nath (AIR 1949 FC 106the same point came up for consideration. In that case some of the parties, who were not joined in filing the appeal but merely figured as respondents therein, presented an application for review of the judgment, on the ground that even though they did not file any appeal, relief could and should have been given to them under the provision of Order XLI, rule 33, C. P. C. Inasmuch as the case of the applicants rested entirely on the same footing as that of the appealing proprietors and the entire decision of the Improvement Tribunal was pronounced to be wrong. This application was accepted by the High Court under Order XLI, rule 33, C. P. C. The Federal Court of India considered the High Court's approach to be correct and their Lordships observed as follows :- "It cannot be disputed that in a proper case the appellate Court can--- under the provision of Order XLI, rule 33, C. 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."
6. Similar question also came up for consideration before a Division Bench of the Dacca High Court of East Pakistan in Hamijan Bibi v. Sheikh Darog A.I and others (PLD 1964 Dacca 119While discussing the scope of rule 33 of Order XLI, C. P. C. The following observations were made by the learned Judges :- "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 powers conferred by the rule to the decision of the Court to be exercised on sound judicial principles. In dealing with the question of exercising 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.
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 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."'
The facts of the case as referred to above are that the trial Court had passed a decree in a suit for declaration and possession against defendant No. 1 with costs and ex parte decree against the rests, except defendants Nos. 2 to 6 against whom it was dismissed. The trial Court declared the plaintiff in the suit to be entitled to six pies share in the disputed land and gave a decree for possession. Defendant No. 1 alone challenged the said judgment and decree in appeal before the District Judge. There was no cross-appeal or cross---objection on behalf of the plaintiffs- respondents before the District Judge who confirmed the findings of the learned trial Court. He, however, set aside the order of the dismissal of the suit against defendants Nos. 2 to 6 and .Accordingly modified the decree. Defendant No. 1 preferred a second appeal to the High Court against the said 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. It was held by the learned Judge while disposing of the appeal that rule 33 of Order XLI, C. P. C. Gave Court of appeal ample power 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 learned Judges made the observations as reproduced above and dismissed the Letters Patent Appeal against the judgment of the learned Single Judge.
7. The next relevant case on this point is S. M. S. Subramaniam Chettiar and another v. Sinnammal and others (AIR 1930 Mad. 801In this case it was contended that the learned Judge had erred in holding that the lower appellate Court had jurisdiction to dismiss the plaintiff's suit under Order XLI, rule 33, C. P. C. When the respondent had filed neither an appeal nor a memorandum of objection challenging the decree for redemption passed by the District Munsif. This contention was repelled by a Full Bench of the Madras High Court in the said case. It was held that "rule 33 of Order XLI, C. P.
C. Enables the Court to do complete justice between the parties. Its terms are very wide. In a proper case it gives the appellate Court ample discretion to pass any decree or make any order to prevent the ends of justice being defeated." It was further held that by the very terms of the order, involving as it does an exercise of judicial discretion, the question whether the appellate Court should exercise the powers conferred by them in a particular case would no doubt depend upon the special facts and circumstances of that case. It was also held that in a proper case the Court should not hesitate to use the powers conferred upon it by the said rule. It was further observed as below;----- "In none of the cases brought to our notice has it been laid down that in an appeal preferred by the plaintiff against a portion of the decree the appellate Court had no jurisdiction, in the absence of a cross---appeal or cross-objection to dismiss the whole suit and that the utmost that the appellate Court is competent to do is to dismiss the appeal. No doubt, the learned Judges have remarked that the provision embodied in this rule should be used with care and caution ; but that does not mean that the appellate Court has no jurisdiction under it to dismiss the plaintiff's suit in toto.
The facts of the case decided by the Full Bench of the Madras High Court .Are that suit for redemption of the mortgage for Rs. 200.00 was filed by the plaintiff on 11th of August 1905. The defendant pleaded that he was owner of the properties and the plaintiff was not entitled to redemption. The trial Court, however, decreed the redemption by the plaintiff on payment of Rs.
830-8-5 to the defendant. The plaintiff preferred an appeal to the lower appellate Court on the ground that the amount that he was directed to pay for redemption was too large and that he was entitled to redemption on payment of a smaller amount. At the hearing of the appeal the learned 'lower appellate Court came to the conclusion that the plaintiff was not entitled to any right of redemption, at all, and consequently not only dismissed the plaintiff's appeal, but reversed the decree of the Court of first instance in plaintiff's favour and dismissed the suit in toto. The main point urged before the Full Bench was whether the lower appellate Court had jurisdiction in an appeal not only to dismiss the same but further to reverse the decree passed in favour of the appellant by the first Court even though the respondent had not preferred any memorandum of objections or an independent appeal questioning the validity of the decree. The observations as well as the findings made by the Full Bench, reproduced above, would show that the appellate Court was found competent not only to dismiss the appeal but also to reverse the decree in toto even in the absence of any appeal or cross-objection having been filed by the respondent.
8. The Full Bench decision, as referred to above, was followed by, a Division Bench of Madras High Court in Thirumala Chariar v. Althimoo!a Karyalayar and others (AIR 1933 Mad. 529It was held in that case that when appeal comes before a Court the whole suit is under the appellate Court's control and as the basis of the suit is found to be false, the non-appealing defendants can be, relieved from the ex parte decree and neither the provision of section 107 nor the fact that the ex parte decree was passed by a Judge different from the one whose decree, was under appeal is a bar to the exercise of very wide discretionary powers under Order XLI, rule 33, C. P. C.
9. The basic principle which has been laid down by the provision of Order XLI, rule 33 is that when an appeal comes before the appellate Court the whole suit, out of which the said appeal arises, is within the control of that Court.
Jawahar Bani v. Shuja Haider (AIR 1921 All. 367a decree was passed by the trial Court against three defendants while two of them appealed and one did not. The appeals of the two appellants who preferred the same were dismissed but the suit as against the other defendant who did not take the trouble to appeal and who was not a party to the appeal was also dismissed. This shows the extent of the power of an appellate Court under Order XLI, rule 33, C. P. C. Which is to be exercised on the above-mentioned principles. The above discussion would show that the scope of the rule is very wide and the same is couched in very wide terms. However, its application depends upon the circumstances of each and every case and the appellate Court is empowered in a proper case to vary or reverse the decree of the trial Court even in favour of a party failing to prefer appeal.
10. In the present case, the appellant, who was respondent before the learned District Judge, tried to assail the decree whereby the plaintiff was granted 2/3rd of the property in question on payment of Rs. 3,066.68 on, the ground that according to the sale-deed the share of respondents 2 and 3 was 1/2 and the decree, as such, was wrongly passed to the extent of 2/3rd against them. I have seen the original sale-deed Exh. P. 1, wherein it is clearly mentioned that half of the property in question has been sold in favour of the appellant and the remaining half in favour of respondents 2 and 3 for a consideration of Rs. 600.00. It means that respondents 2 and 3 own half of the property in question and not 2/3rd of the same. The learned. Additional District Judge in his judgment has, however, not adverted to the provision of Order XLI, rule 33, C. P. C. As to whether the power given to the appellate Court under the said provision can be exercised in the circumstances of the case in favour of the appellant. He has repelled the plea of the appellant on the ground that since he has failed to challenge the decree by filing a regular appeal, therefore, he cannot be granted the relief claimed by him. The learned Additional District Judge has also failed to see that under the said provision of law whole suit comes under the control of the appellate Court in appeal proceedings and in a proper case, as. Discussed above, the appellate Court can interfere with the judgment and decree passed against a person who has not challenged the same in appeal. Since this aspect of the case has not been considered by the learned Additional District Judge, therefore, the impugned judgment and decree passed against the appellant cannot be maintained in law.
11. For the aforesaid reasons, the appeal is accepted and the judgment and decree passed against the appellant is hereby set aside being illegal, without jurisdiction and of no legal effect. The case is remanded to the learned District Judge, Rawalpindi, for deciding the appeal afresh in accordance with law and in the light of the observations made above. In the peculiar circumstances of the case, there will be no order as to costs.