Case: Ratan Lal Shah Vs. Firm Lalmandas Chhadammalal &amp; Anr

1. 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 Court of the Senior Civil Judge, Nainital, for a decree for Rs. 12,883 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 plaintiff in its entirety against "Mohan Singh and Ratan Lal and the firm known as Mohan Singh Ratan Lal".2. 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 the 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 observedwe here 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 thisthe order passed by the High Court this appeal has been preferred with special leave.

Reasoning: 3. In our view the judgment of the High Court cannot be sustained. 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 conflictingobject 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.There was some conflict of judicial opinion in the High Courts on the question whether power under Order 41, Rule 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 in the appeal. The preponderance of authority in the High Court 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 beis, however, unnecessary to examine those decisions for, in our judgment, the question has been considered by this Court in Karam Singh Sobti v. Shri Pratap Chand, (1964) 4 SCR 647  = (AIR 1964 SC 1305 ). 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 landlords 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, however, unnecessary to examine those decisions for, in our judgment, the question has been considered by this Court in Karam Singh Sobti v. Shri Pratap Chand, (1964) 4 SCR 647  = (AIR 1964 SC 1305 ). 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 landlords 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 TrialCourt. 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 questions 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, even though the tenant had not appealed against the order of the Court of Firstin 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 theis 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 Order 41, Rule 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 liability for the claim of the plaintiffs in its entirety. This was essentially a case in which the Courts jurisdiction under Order 41, Rule 4, Code of Civil Procedure could be exercised.