JUDGMENT S.D. Agarwal, J.
1. This is a defendant's second appeal arising out of a suit filed by the plaintiff-respondent Har Bhajan Singh for possession over Shop No. WB17/290 together with a phar (open land) in front of shops Nos. WB/17/289, 289A, 289/1 and 290 as shown in the map attached to the plaint. A sum of Rs. 345/- was also sought to be recovered as arrears of rent and damages at the rate of Rs. 15/- per mensem for wrongful use and occupation from 15-11-1966 till the date of actual possession. The appellant Om Prakash is a tenant and respondent Har Bhajan Singh is the landlord. The plaintiff-respondent had purchased a set of shops whose numbers have been mentioned above at an auction on 13th December 1964 held under the authority of Custodian, Evacuee property. Om Prakash was a tenant of the said shop bearing No. WB/17/290 as also of the phar in front of the shop. The case set up was that this shop in fact had two doors and as such the defendants appellants became a tenant of both these shops which has a main door as well as a phar. It was further alleged that a notice of demand was served upon the appellant but he did not pay the rent and as such he was a defaulter in the eye of law.
2. The appellant set up a defence that shop No. WB/17/290 did not contain two doors at all, that each door appertains to a different shop. The shop appurtenant to the western door is No. 290 while the shop appurtenant to the eastern door is No. 291. It was further alleged that the plaintiff respondent did not purchase shop No. 291 or the phar and as such the appellant was not the tenant relating to shop No. 291 or the phar. It was further alleged that no such auction had taken place as alleged by the plaintiff-respondent and in any case the sale certificate issued in favour of the plaintiff-respondent was wholly illegal and ineffective.
3. The trial court decreed the suit only for possession over the eastern shop. The suit in respect of the western shop and the phar was dismissed. The defendant-appellant filed an appeal before the lower appellate court, against the decree which was passed against him in respect of the eastern shop. The plaintiff-respondent also filed an appeal against the dismissal of his suit it respect of the phar but he did not file any appeal against the dismissal of his suit regarding the western shop. Both the appeals came up for hearing before the lower appellate court. The lower appellate court recorded a finding that the shop held by the appellant and assigned only on ration number, namely, WB/290 during the relevant period although initially there were two shops and that WB 17/ 290 represents both the shops of which the plaintiff-respondent is the owner by purchase. It was further held that the phar land in front of the shops was also included in the plaintiff respondent's purchase and that the appellant was a tenant in respect of both the shops bearing one rationing number WB 17/290 along with the phar in dispute. In view of these findings the lower appellate court exercising the power under Order 41, Rule 33, Civil P. C. allowed the appeal of the respondent and dismissed the appeal on behalf of the appellant and decreed the entire suit by judgment dated 21st March 1973. Against the judgment dated 21st March 1973 the present second appeal has been filed in this Court.
4. Learned counsel for the appellant has raised two contentions before me. His first contention is that the plaintiff respondent having not filed any appeal against the decree of the trial court dismissing his suit in respect of the western shop the lower appellate court had no jurisdiction to pass a decree and has erred in passing a decree in exercise of the power under Order 41, Rule 33, Civil P. C. The second contention is that the finding "that the plaintiff respondent is the owner of the phar is vitiated in law as the lower appellate court has ignored to consider the admission made by the Custodian, Evacuee property in suit No. 425 of 1960.
5. I have heard learned counsel for the parties at length.
6. Order 41, Rule 33, Civil P. C. is quoted below:
"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 be 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:
Provided that the appellate court shall not make any order under Section 35-A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order."
7. Under the above rule the appellate court has power to pass any decree and make any order which ought to have been passed and it has been further provided that the power may be exercised by the court notwithstanding that the appeal is as to part only of the decree. Rule 33 is very widely worded. It also gives power to an appellate court to pass a decree in favour of the appellant though an appeal may have been filed against a part of the decree only. In terms, therefore, the appellate court had the jurisdiction to pass a decree in favour of the plaintiff-respondent though the plaintiff-respondent had filed an appeal only against the decree relating to phar.
8. In Panna Lal v. State of Bombay, AIR 1963 SC 1516 the Supreme Court had occasion to interpret Order 41, Rule 33, Civil P. C. The Supreme Court observed as follows:
"We are not, at present advised, prepared to agree that if a party who could have filed a cross-objection under Order 41, Rule 22 of the Code of Civil Procedure has not done so, the appeal court can under no circumstances give him relief under the provisions of Order 41, Rule 33 of the Code."
9. In Giani Ram v. Ramji Lal, AIR 1969 SC 1144 the expression 'which ought to have been passed' used in Order 41, Rule 33, Civil P. C. came up for interpretation. Their Lordships of the Supreme Court held:
"The expression "which ought to have been passed" means "which ought in law to have been passed." If the Appellate Court is of the view that any decree which ought to have been passed, but was in fact not passed by the subordinate Court, it may pass or make such further or other decree or order as the justice of the case may require."
10. In the recent case of Koksingh v. Deokabai, AIR 1976 SC 634 specific question came up for consideration before the Supreme Court as to whether a respondent who did not file any appeal from a decree could be entitled to relief under Order 41, Rule 33, Civil P. C. The Supreme Court after examining the authorities came to the conclusion that relief could be granted. The Supreme Court held as follows:--
"Therefore, we hold that even if the respondent did not file any appeal from the decree of the trial court, that was no bar to the High Court passing a decree in favour of the respondent for the enforcement of the charge."
11. In Tirkha v. Charan Singh, 1968 All LJ 416 a learned single Judge of this court took the view that Order 41, Rule 33, Civil P. C. is couched in very wide language and authorises the appellate court to make any order which ought to have been passed or made in favour of any party although that party may not have filed any appeal or objection. I fully agree with the view taken in the case of Tirkha (supra).
12. In view of the above decisions I am, therefore, of the opinion that even if the appellant had not filed an appeal against a part of the decree the appellate court was entitled to exercise powers under Order 41, Rule 33, Civil P. C. AND GRANT a decree to the appellant provided the other requisite condition for the grant of that decree had been complied with.
13. Learned counsel for the appellant has in particular relied upon two cases, one of this court and the other of the Supreme Court. The case of the Supreme Court relied upon by the learned counsel for the appellant is Nirmala Bala v. Balai Chand, AIR 1965 SC 1874. In para 22 the Supreme Court has laid down the following proposition of law:
"The rule is undoubtedly expressed in terms which are wide, but it has to be applied with discretion, and to cases where interference in favour of the appellant necessitates interference also with a decree which has by acceptance or acquiescence become final so as to enable the Court to adjust the rights of the parties. Where in an appeal the court reaches a conclusion which is inconsistent with the opinion of the Court appealed from and in adjusting the right claimed by the appellant it is necessary to grant relief to a person who has not appealed, the power conferred by Order 41, Rule 33, may properly be invoked. The rule however does not confer an unrestricted right to reopen decrees which have become final merely because the appellate court does not agree with the opinion of the court appealed from."
14. In this case the Supreme Court has in fact held that it is open to an appellate court to grant a relief to a person who has not appealed. The principle laid down in this case in fact assists the plaintiff respondent and as such no benefit can be taken of this case by the appellant.
15. The other case of the court which has been relied upon by the appellant is Budhan v. Lala Harbans Lal, AIR 1973 All 63. In this case also a learned single Judge of this court has held as follows:--
"The normal rule is that the party who is aggrieved by the decree has to file an appeal within the time allowed but there are some exceptions to this rule and under Order 41, Rule 33, Civil P. C. the appellate Court is given power to interfere where as a result of interference in favour of the appellant it becomes necessary to readjust the rights of other parties or where the question is one of setting mutual rights and obligation or where the relief prayed is single and indivisible but is claimed against number of persons."
16. The case of Budhan (supra) also does not help the appellant. In fact it supports the case of the plaintiff respondent as in this case it has been specifically held that the appellate court has been given a right to grant a decree where the relief prayed for is indivisible.
17. In the instant case the lower appellate court has recorded a finding that the shop as well as the phar was in the tenancy of the appellant. Having found that it was one tenancy, the tenancy was not divisible and as such the lower appellate court was fully justified in invoking Order 41, Rule 33, Civil P. C. for the ends of justice. I do not find any error of law in the judgment of the lower appellate court in its exercising power under Order 41, Rule 33, Civil P. C. In the circumstances I do not find any force in their first submission made by the learned counsel for the appellant.
18. In regard to the second submission the lower appellate court has considered the so called admission made by the Custodian. The actual statement of the Custodian, Evacuee property was not filed by the appellant, only a portion of the judgment in suit No. 425 of 1960 was sought to be relied upon. The lower appellate court has considered this statement. The lower appellate court has further held that in spite of the finding recorded by the court in that suit the suit was dismissed and as such neither of the parties had a right to appeal against the said judgment. The admission is not such which might vitiate the finding recorded by the lower appellate court. The lower appellate court has on the basis of independent oral and documentary evidence come to the conclusion that the phar in dispute belongs to the plaintiff respondent. This clearly is a finding of fact and I do not find any error of law in this finding.
19. In the result there is no force in this appeal. It is accordingly dismissed but in the circumstances of the case parties are directed to bear their own costs.