Ambit of Order 41 Rule 33 OF CPC & power of appellate
court
Once a suit is adjudicated finally in a
court of first instance, after leading of evidence, the first appeal could be
preferred by the aggrieved party under Section 96 of Code of Civil Procedure.
We know that first appellate court shall be the courts for appreciating the
evidence as well and thus, the first appellate court shall be the court of
appeal for facts and law both, unlike second appeal u/s 100 of Code of Civil
Procedure, where, the high court hears the appeal on substantial question of
law only. The aforesaid is the basic component, though. It is imperative in the
context to elucidate another provision contained in Order 41 Rule 33 of Code of
Civil Procedure as that accords substantive power to the first appellate court
in appeal, contrary to norm. The first appellate court as per the principles of
Order 41 Rule 33 of CPC may pass in appeal orders, even when the trial court
may have omitted such issues in the first place. Moreover, even when no appeal
is filed by some respondents, who may be respondents before trial court, then
too orders qua such respondents could be passed by the appellate court.
Moreover, even when no cross objections are filed in respect thereof, the first
appellate court is not precluded in taking note of issues without cross
objections. The first appellate court is clothed with the power as aforesaid,
however, such power is required to be exercised sparingly and in a very apt
case or cases.
This is a departure to convention. Before
proceeding further, it may be apt to reproduce the provision under Order 41
Rule 33 which is a comprehensive power bestowed on the first appellate court,
albeit in rare circumstances as narrated above:
33. Power of Court of Appeal-
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 and may, where there have been decrees in
cross-suits or where two or more decrees are passed in one suit, be exercised
in respect of all or any of the decrees, although an appeal may not have been
filed against such decrees:
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."
It could thus at once be noticed that
in terms of Rule 33 of Order XLI CPC, the Appellate Court is empowered to pass
any decree and to make any order which ought to have been passed or made; and
which may be considered requisite in a case. While the said Rule 33 prescribes
general powers of the Court of appeal, the specific powers of remand are also prescribed
in Rules 23 and 23-A of Order XLI CPC.
1.
In this context it may be
worthwhile to also refer to a matter of Choudhary
Sahu (Dead) by LRs. v. State of Bihar (1982) 1 SCC 232, their Lordships of
the Supreme Court have held that this rule i.e Order 41 Rule 33 of CPC is
widely expressed and it must be applied with great caution. The object of this
Rule is to empower the appellate court to do complete justice between the
parties. Under this Rule, the court has power to make a proper decree
notwithstanding that the appeal is as to part only of the decree and such power
may be exercised in favour of all or any of the parties even though they may
not have filed an appeal or objection. It was observed in paragraphs 12
and 13 of the report as under:-
"12.The object
of this Rule is to avoid contradictory and inconsistent decisions on the same
questions in the same suit. As the power under this rule is in derogation of
the general principle that a party cannot avoid a decree against him without
filing an appeal or cross-objection, it must be exercised with care and
caution. The Rule does not confer an unrestricted right to re-open decrees
which have become final merely because the appellate court does not agree with
the opinion of the court appealed from.
13. Ordinarily, the
power conferred by this Rule will be confined to those cases where as a result
of interference in favour of the appellant further interference with the decree
of the lower court is rendered necessary in order to adjust the rights of the
parties according to justice, equity and good conscience. While exercising the
power under this Rule the court should not lose sight of the other provisions
of the Code itself nor the provisions of other laws, viz., the law of
limitation or the law of court fees etc."
2. The Supreme Court has
also in the case of Chandramohan Ramchandra Patil & Ors Vs Bapu Koyappa Patil (dead)
& Ors through LR (2003) 3 SCC 552 has held thus:
“14. Order 41 Rule 4 of the Code enables reversal
of the decree by the court in appeal at the instance of one or some of the
plaintiffs appealing and it can do so in favour of even non appealing
plaintiffs. As a necessary consequence such reversal of the decree can be
against the interest of the defendants vis à vis non appealing plaintiffs.
Order 41 Rule 4 has to be read with Order 41 Rule 33. Order 41 Rule 33 empowers
the appellate court to do complete justice between the parties by passing such
order or decree which ought to have been passed or made although not all the
parties affected by the decree had appealed”.
15. In our opinion, therefore, the appellate court
by invoking Order 41 Rule 4 read with Order 41 Rule 33 of the Code could grant
relief even to the non appealing plaintiffs and make an adverse order against
all the defendants and in favour of all the plaintiffs. In such a situation, it
is not open to urge on behalf of the defendants that the decree of dismissal of suit passed by the trial court
had become final inter se between the non appealing plaintiffs and the
defendants.”
3. The Supreme Court has further observed in Municipal Committee Hoshiarpur Vs
Punjab State Electricity Board & Ors (2010) 13 SCC 216
“27. There is no prohibition on
entertaining a second appeal even on a question of fact provided the court is
satisfied that the findings of fact recorded by the courts below stood vitiated
by non consideration of relevant evidence or by showing an erroneous approach
to the matter i.e. that the findings of fact are found to be perverse. But the
High Court cannot interfere with the concurrent findings of fact in a routine
and casual manner by substituting its subjective satisfaction in place of that
of the lower courts”.
4. In a matter captioned as Sirajudheen
Vs. Zeenath & Ors. [Civil Appeal No. 1491 of 2023 arising out of SLP
(Civil) No. 22557 of 2019] it is observed by Supreme Court that:
“10. It could at once
be noticed that in terms of Rule 33 of Order XLI CPC, the Appellate Court is
empowered to pass any decree and to make any order which ought to have been
passed or made; and which may be considered requisite in a case. While the said
Rule 33 prescribes general powers of the Court of appeal, the specific powers
of remand are prescribed in Rules 23 and 23-A of Order XLI CPC. Hence, for the
purpose of the case at hand, reference to aforesaid Rule 33 remains inapposite…”
5. The Supreme Court in a recent judgment
captioned as AZGAR BARID (D) BY LRS. AND OTHERS VS MAZAMBI @ PYAREMABI AND
OTHERS CIVIL APPEAL NO. 249 OF 2010 has categorically dealt with the ambit of
power of first appellate court under Order 41 Rule 33 of Code of Civil
Procedure. The Supreme Court has held as under:
“6. Learned counsel
appearing for the appellants herein / plaintiffs, would submit that the first
appellate Court after having affirmed the finding of the trial Court that the
plaintiffs are purchasers of the suit land from Sayra Bi by registered sale
deed Ex.P-7 and thereby became title-holders of the suit land and affirmed that
finding on issue No.1 could not have ventured into invoking Order 41 Rule 33 of
CPC and could not have reversed the judgment & decree of the trial
Court, as it is the case where the first appellate Court has even affirmed
the finding of title in favour of the plaintiffs recorded by the trial Court.
Therefore, Order 41 Rule 33 of CPC could
not have been invoked into to decide an issue which was never raised by the
defendant either before the trial Court or before the first appellate Court
either in pleading or in argument and it is not the case where in order to
avoid the contradictory decree, invocation of Order 41 Rule 33 of CPC was
necessary. As such, the first appellate Court has acted absolutely without
jurisdiction in granting the appeal partly after having affirmed the finding on
issue No.1.”
Himachal Pradesh High Court
The Division bench of Himachal Pradesh High Court in FAO No. 384 of 2012
in a matter captioned as Oriental Insurance
Company Limited Vs Smt. Krishna Kumari and others 2004 ACJ
1039 has held as under:
“45. Thus, it can easily be deduced that the mandate of Section
96, Section 107(2) and Order 41 Rule 33
of CPC is just to rectify the errors and achieve the aim and object of
the of legislation. The purpose of Order 41 CPC as discussed hereinabove,
is to enable the appellate Court to do complete justice between the parties and
to pass order which ought to have been passed while keeping in view the facts
and circumstances of the case”.
The question arose before this High Court was - whether the
appellate Court can modify the award in the absence of cross appeal. This High
Court answered in the affirmative. It is apt of to reproduce paragraph 13
of the said judgment hereunder:
"13.
Because of what has been held in this judgment, it is felt necessary to
exercise power vested in this court under Order 41, Rule 33 of the Civil
Procedure Code to set aside the findings in the operative portion of the award
requiring the appellant to pay the amount and then to recover it from the
'insurer' (it should have been 'insured'?). This is a direction in the impugned
award that needs to be set aside. On this aspect, Mr. Sharma had argued that
there is no cross appeal by the owner of the vehicle. To meet such a
situation, legislature had enacted Order 41, Rule 33 in the Civil Procedure
Code even in cases where an appeal is not filed by a party, like the owner in
the present appeal. As such, this plea cannot be accepted."
In
FAO No.203 of 2010, titled as Nati Devi & Anr vs Maya Devi & Ors,
decided on 20th May, 2016,
FAO No. 448 of 2011, titled as Sarita Devi& Ors Vs Ashok Kumar & Ors,
decided on 17th June, 2016, and in FAO (MVA) No. 599 of 2008, titled as Shri
Raj Pal Yadav & Anr Vs Jamna Devi & Anr, decided on 24th June, 2016,
similar views were taken by the Himachal Pradesh High Court.
The Jammu and Kashmir
High Court, in a case titled as State
Bank of India vs. M/s Sharma Provision Store and another, reported in AIR
1999 J&K 128, held that a High Court can pass a decree which ought to have
been passed by the trial Court. It is apt of to reproduce relevant portion of
paragraph 7 of the said decision hereunder:
"7. .......This
is an exceptional situation which authorises this Court in the present appeal
to pass such decree as ought to have been passed or as the nature of the case
demands. Similarly discretion vested in this Court under the aforesaid
provision of law will not be refused to be exercised simply because respondents
have not either filed an appeal or cross objections."
RAJSTHAN HIGH COURT
The High Court of Rajasthan, while dilating
upon the powers of the Appellate Court under Order 41 Rule 33 of CPC, in the
case titled as United India Insurance Co. Ltd Vs. Dama Ram and others,
reported in 1994 ACJ 692, held that the appellate Court can rectify the error
invoking Order 41 Rule 33 of CPC even in the absence of Cross
Objections or appeal by the claimants. It is apt to reproduce paragraph 7
of the said decision hereunder:
"7. The
Tribunal has not passed award in any case against the owner (insured) of the
vehicle. It has passed awards against the appellant insurance company only.
It is not in dispute that the Tribunal has categorically held that the
said accident took place due to rash and negligent driving of the truck by its
driver. As such, his employer, namely, Mohd. Rafiq, owner
of the said truck, was liable for his negligent act. Thus the Tribunal
committed a serious error in not making liable the owner and driver of the
offending truck to pay the said amounts of compensation. This error can well be
of corrected by this court by invoking the provisions of Order 41, Rule 33,
Civil Procedure Code, even if no cross objection or appeal has been filed by
the claimants respondents. It has been observed in AIR 1976 SC 634, paras 6
and 7, as follows:
(6)
In Giani Ram Vs Ramji Lal AIR 1969 SC
1144, the court said that in
Order 41, Rule 33, the expression 'which ought to have been passed' means 'what
ought in law to have been passed' and if an appellate court is of the view that
any decree which ought in law to have been passed was in fact not passed by the
court below, it may pass or make such further or other decree or order as the
justice of the case may require.
(7) 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.
CONCLUSION
The discussion thus
entails that the provision contained in Order 41 Rule 33 of CPC shall not
mandate the appellate court to enter into the factual dispute which was neither
raised nor the lis is brought before the Court. The power is required to be
exercised cautiously and with utmost circumspection only in exceptional cases with
a view to do complete justice, where totally uncalled for decree or order has
been passed and to avoid the contradictory and inconsistent decision on the
same question in the same suit it has become imperative. It has not to be
routinely invoked and exercised, if the appellate Court does not agree with the
pleadings and stand of the parties. As such, reversal of the decree exercising
the power in the garb of exercising power under Order 41 Rule 33of the CPC
enlarging the scope of appeal reversing the judgment & decree of the trial
Court cannot be countenanced. This runs contrary to the provisions contained in
Order 41 Rule 33 of CPC as well as the well settled law delineated by
the Supreme Court in the judgments noticed herein-above.
What therefore could
be deduced from above is that the mandate of Section 96 , Section 107(2) &
Order 41 Rule 33 of CPC is only to rectify the errors with a view to meet
the object of the legislation. The purpose of Order 41 of CPC as narrated above,
is to enable the appellate Court to do complete justice between the parties and
to pass order which ought to have been passed while keeping in view the facts
and circumstances of the case. A meticulous and critical reading of the
above-stated provision would indicate that the object of Order 41 Rule 33 of the CPC is to avoid contradictory and inconsistent decisions
on the same questions in the same suit. This Rule does not confer an unrestricted
right to re-open decrees which have become final and though the power is vested
in the appellate court, but it should be exercised by the appellate Court in
exceptional and rare cases to do complete justice between the parties.
-------
Anil K khaware
Founder
& Senior Associate
Societylawandjustice.com
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