1. Brij Mohan Lal obtained an exparte decree on 22nd April 1954 against his tenant Mannu Lal for ejectment and for recovery of arrears of rent. Mannu Lal on 8-6-1954 applied to get this ex parte decree set aside. During the pendency of this application Mannu Lal died and his three sons and the widow came on the record as his legal representatives. The trial Court on 5-8-1955 dismissed this application. Against this decision Raj Kishore and Anand Kishore (two sons of Mannu Lal deceased) filed an appeal in the conrt of Senior Sub-judge, Delhi. These appellants, however, did not implead their third brother Rup Kishore and their mother Shrimati Chand Rani as appellants or respondents. The Senior Sub-Judge accepted the appeal by order dated 16th August 1955 and set aside the ex parte decree on payment of Rs. 32/-as costs.
Against this order of Sr. Sub-Judge the landlord Brij Mohan Lal filed revision petition in this Court. When the revision came before Mehar Singh J. the learned counsel for the appellant urged that the appeal before the Senior Sub-Judge was incompetent in the absence of all the legal representatives of Mannu Lal. Finding that there was a conflict in decisions on the point Mehar Singh J. referred this master to larger Bench and it has now come up before us for decision.
2. The question raised on behalf of the landlord petitioner is this. Under the ex parte decree for eviction all the legal representatives of Mannu Lal are liable to be evicted. The application of Mannu Lal for seating aside ex parte decree was dismissed when his legal representatives were on the record. Therefore, on the date of that order they all became liable to bo evicted. Only two of the legal representatives, however, filed the appeal without implcading the other two. The appeal was, therefore, not properly constituted and was incompetent. In any case the legal representatives not implcaded are now liable to eviction as the order refusing to sot aside the ex parte decree has become final. In these circumstances it was urged that no useful purpose would be served by hearing the appeal because it must fail in the absence of the two legal representatives who were not before the appellate court. On the other hand the tenants' case is that the appeal by some of the applicants was competent and relief to the non-implead-ed applicants could be granted under Order 41, Rules 4 and 33, Civil Procedure Code,
3. Now order 41 relates to proceedings to be taken in appeal. There is no express provision in Order 41 indicating parties that should be impleaded when filing an appeal. Order 1 deals with joinder of parties in a suit. Under Order 1, Rule 1, Civil Procedure Code, all persons may join as plain- tiff who claim relief arising out of the same transaction and all persons under Order 1, Rule 3 may join as defendants against whom the relief is claimed.
4. In the present case it is not denied that all the four heirs of Mannu Lal deceased claimed relief against the landlord on a ground common to all of them. It is also obvious that the two appellants did not claim any relief against their brother and mother. They claimed relief only against the landlord who was duly impleaded as respondent. It follows that if the other two heirs had been impleaded in the appeal as respondents then they would have been only pro forma respondents. There is no express provision in the Civil Procedure Code which lays down that an appeal filed without impleading pro forma respondents would be incompetent, nor has any such provision been brought to our notice. In the absence of any such provision the appeal must be held to be competent and must be heard and decided.
5. It now remains to be determined if in the absence of the oilier heirs of Mannu Lal the appellants can or cannot be given any relief in the appeal. It has been urged on behalf of the landlord that no relief claimed by the appellants can be granted without creating two conflicting orders. If in appeal the ex parte decree is set aside then the appellants will have a right to contest the suit while the other two heirs of Mannu Lal against whom the order refusing to set aside the decree had become final would not be able to contest the suit on merits and would be liable to eviction. If is argued that to avoid this anomalous position the only course open to the Court of appeal was to dismiss the appeal.
6. The tenants' case, however is that it was open to the appellate Court to avoid this consequence of a conflicting decision by giving the required relief to the non-appealing tenants who are parties to the suit although they had not been impleaded in this appeal. For this purpose reliance has been placed on the provisions contained in Order 41, Rule 4 and Order 41, Rule 33, Civil Procedure Code.
7. Order 41, Rules 4 and 33, Civil Procedure Code road:
'4. Where there are more plaintiff's 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 the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may he.
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 he 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:'
Now Order 41, Rule 4 is an enabling provision and empowers courts to exercise discretion in favour of persons who have not appealed against the decree provided the decision proceeds on grounds common to the appellants and the non-appealing persons. This rule does not say that this power can be exercised only if the non-appealing persons are parties to the appeal. If Order 41, Rule 4 is read with Order 1, Rule 3. Civil Procedure Code and the word 'respondent' is read for 'defendant' in Order 1, Rule 3, then the respondent against whom the relief is sought would be a necessary party to the appeal.
There is no provision which compels a party to implead persons against whom no relief is sought. Such persons may be proper parties to the suit or appeal but arc not necessary parties. It is well established that the absence of the pro forma party against whom no relief is sought does not disentitle the plaintiff or the appellant to seek relief against the persons who have been impleaded nor is there any provision which prohibits a Court from deciding the matter on merits. Moreover, the order under Order 41, Rule 4 is to be made in favour of and not against the non-appealing person.
Principles of natural justice require that no decision against a parfy should be made without affording him an opportunity to place his case before the deciding authority, It is however not the principle of natural justice that no order can be passed in favour of a person who has not been heard. It, therefore, follows that non-impleading of a pro forma party to whom a relief may be granted under Order 41, Rule 4 does not affect any principle of law or justice. In fact it is only just and proper that a person who has not appealed or who has not been impleaded as a pro forma respondent may be given relief by Courts on any ground common to all the plaintiffs or the defendants so that full effect may be given to the decision of the Court.
Such an exercise of power under Order 41, Rule 33, Civil Procedure Code in favour of an absent party also would make the decision of the Court consistent. It may, however, be pointed out at this stage that it is always discretionary to exercise powers under Rules 4 and 33 in favour of an absent party and that discretion is to be exercised judicially.
8. In 1922 the Legislature enacted Order 41, Rule 33 and it has been enacted to empower the Appellata Court to do complete justice between the parties. It is an enabling provision. (Vide Hari Sankar Pal v. Anath Nath Slitter, AIR 1949 F. C. 106.) It empowers Courts to exercise power in favour of and not against 'all or any of the respondents or parties.' If Order 41, Rule 4 and Order 41, Rule 33 are read together then it becomes absolutely clear that this power can be exercised in favour of persons who have not been impleaded in an appeal.
9. It was argued by Shri Bhagwat Dayal the learned counsel for the landlord that the words 'all or any of the respondents or parties' occurring in Order 41, Rule 33 only mean respondents and that the word 'parties' has been used merely as equivalent to 'respondents', because a party to an appeal if not an appellant must be a respondent. If this construction is accepted then it follows that the words 'or parties' are surplusage in Order 41, Rule 33. It is well established that no word in a section must be considered to be redundant and meaning should be given to it if possible. As discussed above I am of the opinion that the word 'parties' as distinct from the word 'respondents' only means parties to the suit and not necessarily parties to the appeal.
This construction is in consonance with the decision in Parwati Kuer v. Manna Lal, (S) AIR 1956 Pat 414 (FB), with which I am in respectful agreement. This view has also been taken by the Calcutta High Court. (Vide Ambika Charan v. Sasitara Debi. 30 Ind Cas 868 : (AIR 1916 Cal 654); Bhutnath Deb v. Sashimukhi Brahmin, AIR 1926 Cal 1042 and Kamalakanta Debnath v. Tamiiaddin, AIR 1935 Cal, 24.) The same view has been taken in Rameshwar Prashad v. Satya Narain. AIR 1954 All 115 and in Mukandi Ram v. Asa Ram, (S) AIR 1955 Pcpsu 73. As observed in Mukku Venkata-ramiah v. Mukku Chinnaiah, AIR 1919 Mad 196, the illustration to Order 41, Rule 33 is not exhaustive of the scope of the rule out is merely illustrative
10. The learned counsel for the landlord, however, placed his reliance on various decisions of the Lahore High Court which in fact led Mehar Singh I., to refer this question to Division Bench. The first case On this point is reported in Sam Khan v. Jan Muhammad, AIR 1928 Lah 43. In that case the plaintiffs appellants before the High Court did not implead co-plaintiffs either as appellants or as respondents. Tek Chand J. observed:
'Order 41 Rule 4 authorises one of the plaintiffs to an action in which other co-plaintiffs are also interested, to appeal for the benefit of the latter, only if they are made parties to the appeal. The proposition is too obvious to require discussion. Authority for it will be found in Ambika Prasad v. Jhinak Singh, AIR 1.923 AE1 211. Baikaran Lal v. Malik Namdar, AIR 1924 All 873, Jitendra Nath v. Joku Mandar, AIR 1922 Pat 4 and Haji Begum v. Shankar Rao, 53 Ind Cas 543: (AIR 1918 Nag 46(2)).' In that case it was conceded by the learned counsel for the appellant that it was by his mistake that the co-plaintiffs were not impleaded as respondents. The High Court exercised its power under Order 41, Rule 20, Civil Procedure Code and impleaded them. It will, therefore, be seen that the learned counsel appearing for the appellant in that! case did not contest the point and obviously it was not argued fully before the Bench. The proposition was taken to be obvious on account of certain decisions of the Allahabad and Patna High Courts. Now Ambika Prasad's case, AIR 1923 All 211, related to abatement and was overruled in Mahadco Singh v. Talib Ali, AIR 1928 All 345 (FB).
The circumstances of the present case occurred in Baikaran Lal's case, AIR 1924 All 873. The matter, however, was not discussed in that case and the learned Single Judge merely followed Ambika Prasad's case, AIR 1923 All 211. In the Patna case AIR 1922 Pat 4, it was held that the suit against some of the tenants for rent for one holding would not be competent and therefore an appeal without impleading all the tenants would be incompetent. This case is clearly distinguishable from the present one. The last case referred to by Tek Chand J., is a Nagpur case, 53 Ind Cas 543: (AIR 1918 Nag 46(2)).
It only lays down that a tenant's right under the Berar Land Revenue Code is heritable and transferable. It makes no reference to Order 41, Rule 4, Civil Procedure Code. If will, therefore, be clear that the point did not actually arise in AIR 1928 Lah 43 because of the concession by the appellant's counsel and because of the Court's deciding to implead the non-impleaded parties under Order 41, Rule 20, Civil Procedure Code. In my view the decision in AIR 1928 Lah 43 cannot be said to have laid down affirmatively that the provisions of Order 41, Rules 4 and 33 apply only to persons who are before the Court and not to parties who have not been impleaded.
11. The decision In Saru Khan's case AIR 1928 Lah 43 was followed by Bhide J., in Fazal Hussain Shah v. Ghulam Rasul. 110 Ind Cas 250 (Lah) and in Kartar Singh v. Waryam Singh, 40 Pun L R 6 without any discussion. The matter again came up before a Full Bench in Nanak v, Ahmad Ali and it is reported in AIR 1946 Lah 399. In that case one of the appellants died and his legal representatives were not brought on the record. The Full Bench held that the interests of the two appellants who were co-owners were severable and therefore the appeal did not abate in toto. Achhru Ram J., who wrote the main judgment in this case observed:
'We did not consider it necessary to hear the parties at any length On the question as to the applicability of Order 41, Rule 4, Civil Procedure Code, or to examine the various conflicting decisions given by the different High Courts on this much vexed question. I wish, however, to observe that, without pronouncing any final opinion on the question whether the provisions of Order 41, Rule 4, Civil Procedure Code, should control those of Order 22, Rule 3, Civil Procedure Code, on which there is undoubtedly a conflict of ODinion even in this Court, it would not be possible to apply Order 41, Rule 4 in the present case. Mr. Asa Ram Aggarwal, the learned counsel for the appellant, had to concede that according to the view consistently taken in this Court Rule 4 of Order 41 cannot be applied where the non-appealing plaintiff or defendant as the case may be, has not been impleadcd in the appeal at all and is not before the appellate Court.'
The learned Judge then discussed the various authorities of the Lahore High Court and concluded by holding that Order 41, Rule 4, Civil Procedure Code did not apply to the case. In my view the decision in Nanak's case AIR 1946 Lah 399 is not a decision on the point now under consideration in view of the specific observation of Achhru Ram J., that the opinion expressed by him was not final. In fact in Nanak's case full argument on this point were not allowed to be advanced by the counsel for the parties. I am, therefore, of the opinion that the decisions of the Lahore High Court and particularly the decision in Saru Khan's case does not decide the question under consideration.
12. That being so I am of the opinion that Order 41, Rule 4 and also Order 41, Rule 33 empower the Court to pass an order in favour of a party to the suit or application though not a party to the appeal. This conclusion is in accordance with the decisions taken by the Calcutta, Patna, Allahabad and Pepsu High Courts. No decision to the contrary excepting the decisions discussed above has been brought to our notice.
13. For these reasons, I would hold that the appeal before the learned Senior Sub-Judge was properly constituted. This point raised by Shri Bhagwat Dayal appearing for the landlord in the revision petition, therefore, fails and is overruled. The case must now be placed for hearing before the Single Bench for decision on merits.