Jojy George Koduvath
Summary
- Two reliefs prayed for in the suit.
- One is granted, and the other is refused.
- Appeal filed by the defendant alone – against the relief allowed.
- Can the refused relief be allowed by the appeal court, even if not appealed against?
- Answer is depended upon – whether the reliefs are inseparably connected or not.
- If not inseparably connected, the dismissed relief cannot be granted by the appellate court.
- If both reliefs are connected or depending on each other, the appeal court can allow the relief not appealed against. Lakshmanan v. G.Ayyasamy, (2016)13 SCC 165; Ram Phal case, Banarsi v. Ram Phal (2003)9 SCC 606
Relevant Provisions – Order XLI Rule 33
R.33 of O.41says that the Appellate Court shall have power to pass any decree notwithstanding that the appeal is not filed. R.33 is, avoiding a situation of conflicting decrees coming into existence in the same suit.
Banarsi v. Ram Phal, (2003) 9 SCC 606, is the authority on this matter
Paras 6, 7 and 15 read thus:
- “6. The appeals raise a short but interesting question of frequent recurrence as to the power of the appellant court to interfere with and reverse or modify the decree appealed against by the appellants in the absence of any cross-appeal or cross-objection by the respondent under Order 41, Rule 22 CPC and the scope of power conferred on the appellate court under Rule 33 Order 41 CPC.
- 7. The first question is whether without cross-objection by the respondent, could the appellate court have set aside the decree passed by the trial court and instead granted straight away a decree for specific performance of contract. This would require reference to the principles underlying right to file an appeal and right to prefer cross-objection or when does it become necessary to prefer cross-objection without which decree under appeal cannot be altered or varied to the advantage of the respondent and/or to the disadvantage of the appellant. It has also been held by this Court in Samundra Devi v. Narendra Kaur SCC(para 21), that this power under Order 41, Rule 33 CPC cannot be exercised ignoring a legal interdict.
- 15. Rule 4 seeks to achieve one of the several objects sought to be achieved by Rule 33, that is, avoiding a situation of conflicting decrees coming into existence in the same suit. The abovesaid provisions confer power of widest amplitude on the appellate court so as to do complete justice between the parties and such power is unfettered by consideration of facts like what is the subject matter of appeal, who has filed the appeal and whether the appeal is being dismissed, allowed or disposed of by modifying the judgment appealed against. While dismissing an appeal and though confirming the impugned decree, the appellate court may still direct passing of such decree or making of such order which ought to have been passed or made by the court below in accordance with the findings of fact and law arrived at by the court below and which it would have done had it been conscious of the error committed by it and noticed by the Appellate Court. While allowing the appeal or otherwise interfering with the decree or order appealed against, the appellate court may pass or make such further or other, decree or order, as the case would require being done, consistently with the findings arrived at by the appellate court. The object sought to be achieved by conferment of such power on the appellate court is to avoid inconsistency, inequity, inequality in reliefs granted to similarly placed parties and unworkable decree or order coming into existence. The overriding consideration is achieving the ends of justice. Wider the power, higher the need for caution and care while exercising the power. Usually the power under Rule 33 is exercised when the portion of the decree appealed against or the portion of the decree held liable to be set aside or interfered by the appellate court is so inseparably connected with the portion not appealed against or left untouched that for the reason of the latter portion being left untouched either injustice would result or inconsistent decrees would follow. The power is subject to at least three limitations: firstly, the power cannot be exercised to the prejudice or disadvantage of a person not a party before the Court; secondly, a claim given up or lost cannot be revived; and thirdly, such part of the decree which essentially ought to have been appealed against or objected to by a party and which that party has permitted to achieve a finality cannot be reversed to the advantage of such party. A case where there are two reliefs prayed for and one is refused while the other one is granted and the former is not inseparably connected with or necessarily depending on the other, in an appeal against the latter, the former relief cannot be granted in favour of the respondent by the appellate court exercising power under Rule 33 Order 41.” (Quoted in: Lakshmanan v. G. Ayyasamy, 2016-13 SCC 165; State of Andhra Pradesh v. B. Ranga Reddy, 2020-15 SCC 681).
