R.P. Mookerjee, J.
1. The plaintiff-respondent filed a suit for realisation of charges for hiring a carriage which had been let out by him to the defendant including damages on the ground of refusal to deliver back the carriage and also for compensation for the value of the carriage.
2. On behalf of the defendant, it was contended that the carriage did not belong to the plaintiff, that the defendant had paid at least a part of the claim, the plaintiff was not entitled to any damages on the allegation of non-delivery of the carriage as the defendant had previously offered to deliver the carriage but that the plaintiff had refused to take delivery. As regards the value of the carriage it was contended that, the defendant having offered to deliver the carriage and such offer having been refused the plaintiff was not entitled to any compensation on this count. In any view the claim wag exorbitant.
3. The learned Munsif decreed the suit in part. The title to the carriage was found in favour of the plaintiff. As regards the hire charges the claim was allowed in part. The story about the defendant's offer to the plaintiff to give back the carriage was disbelieved and Rs. 200 was allowed as compensation under this head. The plaintiff was entitled to the value of the carriage if the defendant did not deliver back the carriage within a certain stated date.
4. A point had been raised before the learned Munsif as regards the present condition of the carriage. As no evidence had been led about the present condition of the carriage that point was left open. The decree merely indicated that if the defendant did not return the carriage within the time allowed by the Court the plaintiff will be entitled to levy execution for Rs. 600 as the price of the carriage.
5. An appeal was taken on behalf of the defendant to the Court of the Subordinate Judge. Although in the plaint the total claim was laid and the suit was valued at Rs. 1003-2-0 the appeal before the lower appellate Court was valued at Rs. 256-7-0. On the memorandum itself it was stated that the value of the appeal was so reduced as the defendant-appellant intended to contest only that part of the decree by which damages and hiring charges were allowed. Although the appeal was so restricted in the memorandum, grounds were taken on behalf of the defendant attacking the decision of the trial Court as regards the price of the carriage, namely. Rs. 600.
6. A cross-objection was also filed by the plaintiff-respondent but limited to certain points other than the decision affecting the price of the carriage. This cross-objection was not allowed to be pressed at the hearing, as no notice thereof had been given to the defendant as required under the Code.
7. The learned Subordinate Judge formulated the points for decision in a very general form. The question before him was whether the plaintiff-respondent is entitled to get a decree for the money as claimed in the plaint. He, therefore, proceeded to consider each one of the different-items of claims. On the question of the title to the carriage, the appellate Court also found in favour of the plaintiff. As regards the hiring charges also he affirmed the decision of the trial Court. He also agreed with the learned Munsif that there was no satisfactory evidence on record to show that the carriage had been taken over by the defendant to the place of the plaintiff respondent as alleged and that the respondent had refused to take delivery. The amount of damages, namely, Rs. 200 as allowed by the trial Court, was accepted. After dealing with these points the learned Subordinate Judge states :
'Now the question comes in as to whether the respondent is entitled to get the price of Rs. 600 for the carriage. The carriage is with the appellant. I think, the respondent should return the carriage in the same condition as he took from the respondent within a fortnight from the date on which the copy of this judgment reaches the learned Munsif along with other papers. In default, the respondent would get a decree for the sum of Rs. 600 as well being the price of the carriage as held by the learned Munsif and which I have no reason to differ from.'
The result was that the learned Subordinate Judge affirmed the decision of the trial Court subject to the addition of the clause that the carriage to be returned by the defendant to the plaintiff was to be in the same condition as it was when the carriage had been hired. The date for delivery was further extended as indicated above. Subject to these two modifications the appeal was dismissed.
8. The only object raised by the defendant-appellant in this Court is that the alteration made by the lower appellate Court, about the delivery of the carriage in the same condition as it was when it had been let out on hire, was without jurisdiction, as there had been no appeal before that Court affecting that part of the decree. The plaintiff, respondent had not preferred either any independent appeal or any cross-objection on this point.
9. The question before the Court is as to what is the true scope of Order 41, Rule 33, Civil P. C. It is conceded that unless the appellate Court is found to have jurisdiction to pass an order of the nature as in this suit under Rule 33 that order is without jurisdiction.
10. The scope of Order 41, Rule 33, Civil P. C., has been considered in a series of decisions and there is no possibility of any doubt about it. As will be indicated hereafter the tests which have been applied are well known but the facts and circumstances of each case have to be considered for determining whether the very wide powers given to a Court under Rule 33, should be applied or not.
11. This Rule is very widely expressed but it has been repeatedly held that it should not be applied to enable the party litigant to ignore the other provisions as contained either in this Code or of statutes relating to limitation or payment of court-fees. Abjal Majhi v. Intu Bepari, 22 C. L. J. 894 : (A. I. R. (3) 1916 Cal. 250), Bangam Lal v. Chantu, 34 ALL. 32 : (11 I. C. 640 F. B.) ; Sibchandra v. A. C. Dulcken, 28 C. L. J. 123 : (A. I. R. (5) 1918 Cal. 13 S. B.). Jenkins C. J., observed in Gangadhar v. Banabashi, 22 C. L. J. 390 : (A.I.R. (1) 1914 Cal. 722) :
'No hard and fast rule can be laid down; but I think it may be fairly said that ordinarily the power contained in Rule 33 should be limited to those cases where, as the result of the Appellate Court's interference with the decree in favour of the appellants further interference is required in order to adjust the right of the parties in accordance with justice, equity and good conscience.'
See also Kuhum Chand v. Ghane Mahomed, 38 I. C. 361 ; (A. I. R. (4) 1917 Cal. 343), where another Division Bench of this Court followed the view expressed by Jenkins C. J. See also Saheb Miah v. Lalit Mohan : AIR1939Cal582 and Akimannessa v. Bepin Behari, 22 C. L. J. 397 : (A.I.R. (3) 1916 Cal. 261).
12. In Radhika Mohan v. Sudhir Chandra : AIR1937Cal10 , the plaintiffs had filed a suit to recover arrears of annuity, granted by the predecessor of the defendants, as being charged upon certain properties. The trial Court held that no valid charge had been proved but that the plaintiffs' claim was realisable from the assets of the grantor in the hands of the defendants. The defendants preferred an appeal against this decision. The plaintiffs did not file any appeal in respect of that part of the decree by which their claim for the charge had been disallowed. The lower appellate Court came to the conclusion that the defendant was not personally liable but that the plaintiffs could enforce the charge they had set up and decreed the suit accordingly. This Court on second appeal held that the modification made by the lower appellate Court in favour of the plaintiffs declaring a charge, although the latter had not preferred any appeal before that Court, was covered by the provisions contained in Order 41, Rule 33, Civil P. C.
13. In Majar Ali v. Nabin Chandra, 85 C. W. N. 1079, the trial Court had decreed the suit against one of the two defendants dismissing the claim against the other. Defendant 1 preferred an appeal. The plaintiff did not file any appeal. The lower appellate Court purporting to act under Order 41, Rule 38, Civil P. C., passed a decree against defendant 2 after holding that defendant 1 was not liable although the plaintiff had not appealed against that part of the decree under which the claim against defendant 2 had been disallowed. This Court confirmed the view of the lower appellate Court.
14. The provisions contained in Order 41, Rule 33, Civil P. C,, are based upon Order 58, Rule 4 of the Rules of the Supreme Court of Judicature in England as appearing in the Rules of the Supreme Court which was in the following terms :
'The Court was entitled 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.'
15. One of the leading decisions is that of the Court of appeal in Attorney-General v. Simpson, (1901) 2 Ch. D. 671 : (70 L. J. Ch. 828). In this case, by the judgment at the trial of the action, it was declared that the public were entitled to pass through certain locks of a waterway without paying any toll, and through the stanch on payment of the statutory toll, and that the defendant was not liable to maintain or work any of the looks or the stanch. The defendant appealed from the judgment, other than the latter part of the declaration. The plaintiffs did not file any cross appeal. The Court of appeal held while allowing the appeal to the extent of declaring that the defendant was entitled to a reasonable toll for passage of boats through the locks that it had power also under Order 58, Rule 4, S. C. R., to vary the judgment in favour of the plaintiffs by declaring that the defendant was bound to maintain and work both the locks and the stanch, and the judgment was varied accordingly. In the opinion of the Court, this rule confers power upon the Court to do and make the change and pass an order in favour of the respondent although the appeal was limited to matters which are not the subject-matter of such change. The respondent may not complain of the decision made but the Court may exercise this extraordinary power.
16. Prom an analysis of these decisions, it may be stated that the rule accepted by all the Courts is that the power given to the Court under Order 41, Rule 33, Civil P. C., should be exercised with discretion and in order to do justice between the parties. If there be two alternative cases made by the plaintiff and relief is given by the trial Court in favour of the plaintiff under one of such alternatives, and the defendants have preferred an appeal from that decree, it is competent for the appellate Court to allow the claims of the plaintiffs on the second alternative which had been dismissed by the trial Court. Charubala v. Nihar Kumari : AIR1927Cal831 . If the appellate Court interferes with or modifies or extends the decision of the lower Court to give effect to that decision by interference if justice and equity demand, the Court is entitled to interfere, if necessary, with the rights and liabilities of those who are not in fact appealing from the decision of the trial Court. Radhika Mohan v. Sudhir Chandra : AIR1937Cal10 .
17. What is required under these provisions is to empower the appellate Court to do complete justice between the parties without trenching upon the provisions contained in the Code or in other special statutes relating to limitation or court-fees.
18. We have next to consider whether on the facts of the present case the provisions of Order 41, Rule 33, Civil P. C., can be attracted to support the direction given by the lower appellate Court about the condition of the carriage at the time of the delivery. I have already indicated that although the appeal before the lower appellate Court was by the statement of the valuation and the amount of court-fee paid limited to two particular portions of the decree, grounds had been taken and urged on behalf of the defendant-appellant relating to the other part of the case which was not strictly speaking a part of the appeal before that Court. From the memorandum of appeal filed by the defendant-appellant in the lower appellate Court it appears that, among others, the following objections were taken as to the direction for the return of the carriage as also the value fixed by the Court if the carriage were not returned.
(1) The trial Court should have directed the plaintiff to take back the carriage and not the defendant to arrange for the return of the same.
(2) The trial Court erred in fixing Rs. 600 as the value of the carriage.
19. It has further to be remembered that Rs. 200 had been claimed as damages by the plaintiff for the defendant not returning the carriage between June 1948 and May 1944. A question arose as to whether the defendant had offered to deliver the carriage back to the plaintiff. The question of damages was mixed up to a certain extent with the claim for the value of the carriage as allowed under the last head. Moreover, these questions were raised by the defendant in the Court of appeal below. The date within which the carriage was to be returned under the directions of the trial Court was extended by the lower appellate Court. From the various objections filed before the lower appellate Court after the passing of the decree, it is clear that the defendant had taken advantage of that direction given in the decree. The case is, and has been always, that the carriage is in the condition in which it was previously and not in any damaged condition as alleged by the plaintiff. Because of these special particulars in this case, it cannot be held that the direction given by the learned Subordinate Judge for returning the carriage in the condition in which it was, was an improper one and not covered by Order 41, Rule 33, Civil P. C.
20. In this case also because of the attitude taken up by the defendant in the lower appellate Court after the passing of the decree and before the filing of this appeal in this Court it cannot but be held that the defendant had submitted to the decree as passed by that Court.
21. Both on the grounds that the learned Subordinate Judge had the jurisdiction because of the special facts in this particular case and to obviate multiplicity of proceedings as also on the ground that the defendant had submitted to the decree as passed by the lower appellate Court I do not think that it would be proper for me to interfere with that pact of the decree as passed by the lower appellate Court.
22. The result, therefore, is that this appeal is dismissed, but considering the circumstances of this case each party will bear his own costs in this Court.