1. ' The property involved in the suit belonged to one Fazal Khan who died before the application of the Shariat Act and was succeeded by his widow, Mst. Husno and four daughters, Mst. Hasoela Begun), Mst. Amira *gum. Mg. Kali and Mst. Raj Begum. Ohulam Roseau appellant is a residuary.
2. Mst. Husno died in 1950 after the application of the Shariat Act. The respondents instituted a suit for the possession of the entire property as heirs of Mst. Husno, treating her as a full owner. The trial Court found that the last full owner was Final Khan and that Mst. Husno had merely a life interest which terminated on her death both instead of passing a decree in favour of the plaintiffs for 19/24 which was their share, it passed a decree for one-fourth only as if the daughters had not existed and the widow was entitled to one-fourth only. The girls did not go in appeal to the District Judge, but the unsatiated human greed of the residuary. An undeserving beneficiary in the trial Court's decree, took him to the District Judge with the prayer that the respondents's share be reduced to 1/8th which was the share of their mother. His appeal was dismissed and his undoing has now brought him to this Court in second appeal.
3. ' There is a concurrent finding that the property belonged to Fazal Khan who was succeeded by his widow as a limited owner and who died after the application of the Shariat Act. Whether the inheritance was not actually governed by Personal Law even on the death of Fazal Khan, need not be considered because the result, in any case, would be the same.
4. ' The learned counsel for the daughters has strenously urged that they were entitled to 19/24 and that although they had not gone in appeal against judgment udgment of the trial Court and had not, for that reason, filed a second appeal, this Court was empowered under Order XLI, rule 33 to vary the decree and advance the cause of justice by granting them a decree for 19/24. Order XLI, rule 33, Civil Procedure Code is reproduced below:- "Rule 33.-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."
5. ' In order to appreciate the scope and application of the Rule, it is necessary to point out that it was enacted for the first time in the Code of 1908. It is inspired by Order XLIII, rule 4 of Supreme Court of Judicature, England, which, as quoted by Salsbury in the Laws of England (1912 Edition) Vol. XXIII at page 201, is reproduced below :-- "Section 358(2).-The Court of appeal has also power to draw inferences of fact and to give any judgment and make any order which ought to have been made and to make such further or other order as the case may require."
6. ' The 1882, C. P. C. Had no such provision but questions involving the same principle, namely, whether an Appellate Court could reverse even that part of the decree which had become final, did come up for consideration. The Allahabad High Court took the view that it could not. For instance in Alma Ram v. Balkishen (1), a suit brought for payment of money was wholly decreed but against one defendant only. The defendant went in appeal against the plaintiffs alone but did not implead co-defendants as respondents. The Appellate Court impleaded them as co-respondent, beyond time, and gave the plaintiffslrespondents a decree against the defendants/respondents. The
(1) .5 All, 260 High Court accepted a revision petition and set aside the order. Said the learned Judges "We do not think that section 559 of the (1882) Code empowers an Appellate Court virtually to make an appeal for an appellant who has refrained from availing himself of his privileges under the law, by introducing for him other respondents than those he has included in his petition of appeal."
7. ' The Calcutta High Court took a contrary view in several cases, one of them being, Upendra Lal Mukerjee and others v. Girindra Nath Mukerjee and others (1). In this case a decree was passed by the trial Court against defendant No, 9 only. Plaintiff did not go in appeal. Defendant No, 9 went in appeal against the Plaintiff but did not implead other defendants. The Appellate Court impleaded these defendants as respondents and granted a decree against them in favour of the plaintiff/respcndent. It also held that exercise of the power was not limited by the provisions of the Limitation Act. It expressly dissented from 5 All.
266. The Madras High Court in Subramanian v. Veerabadran (2), dissented from the Calcutta view and adopted the Allahabad view. In this case, one to recover possession, the lower Appellate Court gave the plaintiff a decree against defendant No, 2 who went in appeal but did not implead other defendants. In second appeal, the learned counsel for the plaintiff/respondent conceded that the decree against the appellant (defendant No, 2) could not be supported but appealed for impleading other defendants as respondents and for the passage of a decree against them. They were impleaded but their, objection that no appeal having been filed against them, they were not liable, was upheld. The learned Judges held:- "Now when a defendant has been exonerated and there is no appeal against so much of the decree as exonerates him, no decree can be passed against him in appeal by any other party to the suit, as he is no party to such appeal and he cannot, in our opinion, be said to be interested in the result of such appeal by another party unless the decree sought to be obtained against the respondents in the appeal, would have the effect of prejudicing him in some way or other."
8. ' It will be observed that when C. P. C. Was re-enacted in 1908, the Legislature accepted and endorsed the Calcutta view.
9. ' A perusal of the Rule shows that it consists of two parts. In the first part it invests the Appellate Court with the following sweeping powers :-
(1) To pass any decree which ought to have been passed.
(2) To make any order which ought to have been made.
(3) To pass such further decree as the case may require.
(4) To make such further order as the case may require.
10. ' The Legislature, consisting then, of wise-men, some of whom had spent a life-time in the service of law, clearly visioned the cropping up of two questions t-
(1) Whether the power covered even that part of a decree, against which there was no appeal or cross-objection.
(1) 25 Cal, 565 (3) 31 Mad. 442
(2) Whether it could be invoked in favour of parties who had neither appealed against an unfavourable verdict nor utilised the opportunity furnished by their opponents filing an appeal, by rolling in a cross-objection.
11. ' These questions were affirmatively answered in the second part, in order to put all doubts at rest.
12. ' The Rule has attracted a plethora of conflicting case-law. It was hold In AIR 1933 Lah. 682, AIR 1925 Pat. 285, A 1 R 1927 Bom. 128, PLD 1959 Dacca 604 and PLD 1964 Posh. 97 that the Rule merely contemplates modification of the decrees at the instance of the appellant and respondent cannot, therefore, challenge adverse decrees or orders without having filed an appeal or cross-objection. It was held in AIR 1927 Mad. 620, AIR 1934 Pat. 134, A 1 R 1935 Nag. 343 and several cases that the Limitation and Court Fees Acts cannot be ignored and by-passed which would be the case if relief is granted to a respondent who has neither filed an appeal nor a cross-objection. The view generally taken in cases which seem to restrict its application is that it does not come into operation unless it is necessary to do so in order to prevent the passing of impossible, contradictory and unworkable orders.
13. ' On the other hand, we have cases such as AIR 1915 All. 284, AIR 1929 All. 334, AIR 1929 Cal. 28, AIR 1930 Mad. 801 and AIR 1940 Pat. 47, in which the view taken is that the Rule has wide application and that the Court has the power to grant appropriate relief to respondents who may not have come with an appeal or cross-objection, It was held in AIR 1937 Cal. 534 that it was the duty of the Court which still retained control of the judgment to take such action as will shorten litigation, preserve the rights or both parties and best sub-serve the ends of justice. It was held in AIR 1928 Lab. 599 that the Rule may be invoked when a party invoking it can be fairly said to be entitled to the relief equitably.
14. ' The illustration given after the Rule in the Code is not exhaustive as held in AIR 1930 Mad. 801 and AIR 1926 Cal, 1042. Commenting upon the scope of powers under this Rule, Cornelius, C. J. Held in PLD 1975 SC 15 :- "Therefore, the mere fact that the plaintiff not having filed an appeal against the failure of the trial Court to grant a decree against a defendant would not type itself be sufficient to justify the refusal, to exercise the power under the Rule. The principle that' in the absence of a counter appeal being filed, the decree against another defendant cannot be given", not only constitutes a fetter upon the extremely wide power given to the appellate Court by the Code but may also be thought to be in direct contravention of a clear provision in the rule. General propositions extracted from precedent cases to the effect that the power given by the rule is widely expressed and must be exercised with discretion, where interferee is required "to adjust the rights of the parties in accordance with justice, equity and good conscience" or where the failure to exercise the power 'would load to impossible, contradictory and unworkable orders". Undoubtedly are considerations which would justify the exercise of the discretion conferred by the rule but it is right to say that if these propositions are to be understood as limiting the exercise of the power within the circumstances specified, they would be in excess of the power given to the Courts to interpret and apply a rule expressed in such wide terms as rule 33. (Italics mine). The Rule confers unfettered discretion, and anything expressed in negative or restrictive terms, affecting its application, must be accepted as applying only to the particular facts of the case to which the rule is being made applied by interpretations."
15. ' Prima jack, it does seem to stand to reason that a party, loaded with an adverse decree or order, who has neglected to approach the next higher Court to avoid, should not be entitled to relief to the extent it has gone against him, when his adversary approaches the said Court for relief against that part of the decree or order which had gone against the said adversary because in such a situation :- (1)To deprive the latter even of that part which has been awarded to him by the subordinate Court and against which no appeal or cross-objection bad been preferred by his opposite-party, would, apparently, amount to punishing him for having exercised a legitimate right-the right of appeal ; and (2)At the same time, it would amount to condoning the negligence of his adversary because despite his negligence of not having availed of the normal avenues of redress, he is still able to get or avoid even that part of the decree which had been awarded against him in the lower Court. In the legal parlance, it would seem to amount to putting premium on negligence.
16. ' But on a closer scrutiny, these seemingly convincing objections lose much of their lustre in the dominant light of the principles that went into the founding of the administration of justice. When we look at the situation from this angle, the Rule emerges out as symbolic of these founding principles. It is generally said that the Judges merely administer legal justice. In my humble opinion, rule 33 is a singular power which frees the Courts from the tentacles of the procedural law and empowers them to do justice as their alert, critical and judicial minds wish a life-time of experience behind it, would consider sublime in the matter.
17. ' No procedure is exhaustive. Human ingenuity is capable, more of frustrating a procedure, than of investing a fool-proof one. That is why both, under the Civil as well as the Criminal Procedure Code wide discretionary powers have been given to Courts to be employed in the service of justice.
18. ' Wherefore, whether a party appeals or not and whether or not he is quick to take advantage of his adversary bringing the dispute before a superior Court by rolling in a cross-objection. 1 see it perfectly just and reasonable that he should be able to appeal to the Court to invoke its wide powers under rule 33 to examine the unjustness or justness of the claim decreed against him or of the decision to deprive him of a part of the property. This can be justified on the following grounds :- (1)He can merely seek the indulgence of the Court but cannot claim a re-examination. As of right, as is the case of an appeal or cross-objection. The Court may or may not grant the indulgence.
(2) The power is invested in the Court-a neutral. It is the Court alone which is to judge whether the ends of justice were so compelling as to invoke its xtraordinary powers of washing away the conclusions arrived at by a subordinate Court after a protracted and laborious trial. If the demands of justice appear to it to he so overpowering, absence of counter-appeal or cross-objection lose the weight because an unjust decision by a Court is destructive of the very objectives that justify its existence.
(3) Interference in such a situation as detailed earlier is, in reality, not to further the interests of a wronged individual, for, that seems to me to be merely an incidental consequence, but to advance the cause of justice and fortify man's inherent faith in an elightened orderly society.
(4) The fear of a re-opening of the correctness or otherwise of even that part, which a Court has erroneously granted him, can also operate as a check on a litlgant like the appellant whose unsatiated greed has been propelling him from one Court to another, not to seek justice for himself but to deprive natural heirs of their right to their parental heritage.
19. ' The authorities which seem to restrict the scope and application of the Rule by denying its benefit to those who did not avail of the right of appeal or cross-objection, with great respect, seem to have ignored the essence of the Rule, namely, to provide a remedy for those very cases, where the C Appellate Court, on the one hand, feels strongly that the respondent has suffered a grave injustice but at the same time, on account of the absence of a cross-objection or a cross-appeal, it feels handicapped in undoing the wrong. After all, if its application was conditioned on a party having filed itself that appeal or cross-objection, why then provide expressly in the Rule self that the power can be exercised notwithstanding their absence? In fact it seems to be intcnded to protect those who missed the bus, whatever the reasons. The Rule also does not require them to explain why they failed to come in cross-appeal or present a cross-objection. All, that they need to establish is that regardless of their human failings, the compulsions of justice or the gravity of injustice demand a reversal of that part of judgment of the lower Court against which no appeal or cross-objection had been filed.
20. ' Now coming to the objection that grant of relief to such a respondent would mean by-passing laws of Limitation and Court-fee, I think these laws are no hangman's ropes and were not enacted to defeat the ends of justice. Both the Acts are based on public policy. The laws of Limitation, to quote the beautiful words of John Voet, are meant to prevent human disputes becoming immortal while man is mortal. It is at best a statute of expediency. It does not create any right; it merely extinguishes the remedy Its justification is not in any morality, which, I am afraid, it is essentially lacking but in the public interest to prevent the perpetuation of civil disputes. The Court Fees Act was not intended to make the dispensation of justice D dependent upon a seeker of justice's capacity to provide revenue for the King. I think the practice is unknown to Islamic jurisprudence.
21. The British intention probably was to check the growth of tendentious and vexatious litigation but one wonders whether the objective was actuall achieved. During my thirty years association with the world of Courts, I do not recall a single instance when a person, desirous of bringing a cause before a Ccurt, may have failed to do so, on account of failure to pay the court-fee because his inability was taken care of by the Act itself. Again, if the overriding consideration with the Legislature had been to first recover Ceasar's share, by way of court-fee, it would have certainly made the grant of relief under rule 33 dependent upon its payment. Disagreeing with the view that rule 33 cannot be interpreted to have by-passed the Court Fees Act, Suhrawardy, I said in AIR 1926 Cal. 1042 "I am sceptic about the proprietary of giving the section such a narrow construction as not to make it applicable to cases where there may be disregard of the provision of other statutes such as the Court Fees Act."
22. ' In so far as the facts of the instant case are concerned, there are three precedents, one of which is on all fours with it. It is AIR 1930 Rang. 190, which related to inheritance under the Budhist law. In this case, the plaintiff had sued for 3/4th of his father's property but the trial Court granted a decree for 1/2 only. He did not go in appeal. In an appeal taken by the defendents and without filing a cross- objection, he took the plea that he was in fact entitled to 3/4th and a latest ruling of the Rangoon High Court was cited in which the share of a son with step-mothers etc., like him, was held to be 3/4th. The High Court modified the decree under rule 33 and substituted 3/4th for 1/2. In Subramanian v. Sinnnmmal (1) A sued for redemption against B and was granted a decree but went in appeal on the issue of the amount of redemption, claimining that it was too high. In appeal his whole suit was dismissed although .8 had not filed any appeal or cross-objection. The plaintiff went in appeal to the High Court which maintained the decision of the lower Appellate Court.
23. ' The Full Bench after taking note of a large number of cases, including 34 All. 32 as well as the Attroney-General v. Simpson (2) which had been relied upon in the Allahabad case, gave the following opinion :- "On the whole we are satisfied that in a proper case the lower Appellate Court has jurisdiction to exercise its powers in favour of the respondent by dismissing the plaintiffs' case, in toto, though the respondent did not prefer a cross-appeal or a memorandum of objections, challenging the decree passed by the first Court.
24. ' The parties in this case, are identical with those in 31 Mad.
442. It is not clear whether they were the same or just name-sakers.
25. ' In 1929 All. 398, decided by a Division Bench including Sulaiman, J. a pre-emption suit had been partially decreed. The pre-emptor submitted to the decree but the vendee-defendant went in appeal. The lower Appellate Court dismissed the whole suit on the basis of partial pre-emptor holding that the plaintiff not having come in appeal, a decree for only part of the property, attracted the disability of the principle of partial pre-emption. He went in 2nd appeal to the High Court which set aside the judgment and held that on the basis of rule 33, the plaintiff was entitled to claim that his whole suit be decreed notwithstanding his failure to file an appeal or cross- objection.
26. ' Therefore, respectfully following the Rangoon case, the appeal is hereby dismissed but the respondents are held entitled to a decree for 19/24 of the entire suit property and cousequently, in the decree sheets of both the subordinate Courts as well, their share will be entered as 19/24 instead of one-fourth.
27. ' In view of the circumstances of this case, the parties will bear their own costs throughout.
28. ' The judgment will be sent to the Sub-Judge, Rawalakot who will summon the lawyers of the parties, announce the judgment, sign it himself and get their signatures, along with the date of announcement.
(I) A 1 R 1930 Mad. 801 (2) (1901) 2 Ch. D 671