Appeal No 1019 of 1966
Appeal by special leave from the judgment and decree dated July 10 1963 of the Allahabad High Court in First Appeal No 16 of 1953
C B Agarwala and K P Gupta for the appellant
B C Misra O P Gupta Ram Parkash Agarwal and Sultan Singh for respondent No 1
The Judgment of the Court was delivered by Shah J
Firm Lalmandas Chhadammalal hereinafter called the plaintiffs  commenced an action against Mohan Singh Ratan Lal through its partners Mohan Singh and Ratan Lal in
the 297 Court of the Senior Civil Judge Nainital for a decree for Rs 12883 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 goods 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 and Ratan Lal and the firm known as Mohan Singh Ratan Lal
Against the decree Ratan Lal alone appealed to the High Court of Allahabad
Mohan Singh was impleaded as the second 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 and 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 If we hear him Ratan Lal the result may be that on the success of his appeal there will be two conflicting 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 defendants than one in a suit and the decree appealed from proceeds on any ground common to all the plaintiffs or to all 298 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 all the plaintiffs or defendants as the case may 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
The Court in such an appeal may reserve or vary the decree in favour of all the parties who are in the same interest as the appellant
There was 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 passed on a ground which is common to them are not impleaded in 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
vs Shri Pratap Chand and Anr1
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 land lord 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 question which are not material for the purpose of this judgment there was difference of opinion between Sarkar J on the one hand and section K Das Acting CJ and Hidayatullah J on the other but the Court unanimously held in that case that the appeal was maintainable before the Subordinate Judge even though 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 against 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 1 299 lant 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
 With that view section K Das Acting CJ and Hidayatullah 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 appeal 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 Mohan 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 and it would be putting a premium upon his negligence to allow him now to prosecute 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 of 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 appeal and to claim relief under 0
41 r 4 of the Code of Civil Procedure if the circumstances of the case warrant it
The decree of the Trial Court proceeded on a ground common to Mohan Singh and Ratan Lal
In the appeal filed by Ratan Lal he was denying 300 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 exercised
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 of 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 appeal in the High Court we direct that he will pay the costs of the appeal in the High Court in any event
RKPS Appeal allowed


Summary:
The respondent obtained a joint decree against the appellant and his partner M Against the decree the appellant alone appealed to the High Court
M was impleaded as the second respondent in the appeal
The notice of appeal sent to M was returned unserved
The High Court dismissed the appeal on the view that since there was a joint decree against the appellant and M in a suit founded on a joint cause of action and the decree against M had become final the appellant could not claim to be heard on his appeal if he was heard there could be two conflicting decisions between the same parties and in the same suit based on the same cause of action
The High Court also held that the appellant had not taken steps to serve M and the appeal must be dismissed for want of prosecution
On appeal to this Court HELD  The judgment of the High Court could not be sustained
The appeal could not be dismissed on the ground that M was not served with the notice of appeal nor in view of the provisions of Order 41 Rule 4 could the High Court dismiss the appeal on the ground that there was a possibility of two conflicting decrees
297 G H 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
The Court in such an appeal may reverse or vary the decree in favour of all the parties who are in the same interest as the appellant
298B Karam Singh Sobti and Anr
vs Shri Pratap Chand and Anr  explained and followed