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Judgment
R. K. Manisana, J.—First Appeal No. 38 of 1989 and Cross Objection No. 4 of 1990 are from the decree and judgment made on 20.4.88
by the Assistant District Judge (1), Gauhati in Money Suit No. 135 of 1982.
The suit was filed by the plaintiffbank for recovery of a sum of Rs. 1,61,015.28 against 5 defendants. After 5 adjournments, 20.4.88 was fixed
for filing of written statements by the defendants. On 20.4.88 also the defendants did not file their written statement, but an application was made
on behalf of the defendants for fixing another dace to file written statement stating that written statement was ready but it could not be signed as the
party who went Rajasthan could not come back from there due to the death of party''s wife. The trial Court refused to grant time and pronounced
judgment exercising its power under Order 8, Rule 10 decreeing the suit against all the defendants. Being aggrieved by the decree, one of the
defendants, namely, Prahlad Kumar Ojha filed the appeal against the plaintiffbank. The other defendants had not filed appeal nor had they bean
impleaded as parties nor respondents to the appeal although the suit was decreed against all the defendants. The plaintiffbank filed the Cross
Objection for enhancement of interest.
Order 8 Rule 10, CPC reads:
Where any party from whom a written statement is required under Rule 1 or Rule 9 fails to present the same within the time permitted or fixed by
the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit, and on the
pronouncement of such judgment, a decree shall be drawn up."".
Rule 10 contemplates two contingencies, namely, (1) where a party from whom a written statement is required under Rule 1 fails to present the
same within the time permitted by the Court, and (2) where a party from whom a written statement is required under Rule 9, CPC, fails to present
the same within the time fixed by the Court. Under Rule 10 when any party fails to present written statement under any of the circumstances stated
above, the two courses are open to the Court. First, the Court may pronounce judgment. Secondly, the Court may make such order in relation to
the suit as it thinks fit. On of the courses may be adopted provided always that justice is done to both the parties. In Sangram Singh vs. Electional
Tribunal AIR 1956 SC 425, the Supreme Court has observed that the ends of justice means not only to the defendants and to the other side but
also to the witnesses and others who may be inconvenienced. In some cases an order awarding costs to the plaintiff would meet the ends of
justice. In other cases, the ends of justice may call for more drastic action. It will depend on particular case, and no hard and fast rule can be laid
down. Various factors have been taken into consideration and carefully weighed, the endeavour should be to avoid snap decisions and to afford
litigants a real opportunity of fighting out their cases fairly and squarely. Costs will be adequate compensation in many cases.
Coming to the case on hand, although there were 5 adjournments, the adjournments were made for good and sufficient reasons in exercise of
judicial discretion. In the light of the above discussions, we are of the view that, considering facts and circumstances of the case, if another date for
filing of written statement is given to the defendants as last chance by awarding costs, it would meet the ends of justice. For these reasons, we are
inclined to et aside the impugned judgment and decree.
Shri RL Yadav, learned counsel for the respondent, has contended that four (4) out of five (5) defendants have allowed the decree of the first
Court to become final, by not appealing against the decree. These four (4) defendants also have not been impleaded as parties or respondents to
the appeal. Therefore, if the decree is set aside in favour of the appellantdefendant only, there would be contradictory decision, and as such, the
appeal is not maintainable. Shri VK Dewan, learned counsel for the appellant, has contended that the appellate Court has jurisdiction to set aside
the decree, not only in favour of the defendantappellant but also in favour of the nonappealing defendants under Order 41 Rule 33, CPG.
The next question that arises for consideration is whether the decree can be set aside, under Order 41 Rule 33,CPC, in favour of other
defendants who have not been impleaded as parties to the appeal or respondents, although they were parties to the suit and the decree was also
against them.
Order 41 Rule 33, CPC, runs as follows:
The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or make and to pass or made
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.
On a bare reading of Rule 33, it makes clear that the object of Rule 33 is to enable the Court to do justice between the parties and to prevent the
ends of justice from being defeated, if the finding is set aside on the grounds common to the parties to the suit But the question then is, Whether it
would be permissible to set aside the decree on the facts of the this case?
In Nirmala Bala vs. Balai Chandra, AIR 1965 SC 1874, and Choudhury Sahu vs. State of Bihar, AIR 1982 SC 98, the Supreme Court has
observed that Order 41 Rule 33, CPC, is primarily intended to confer power upon the appellate Court to do justice by granting relief to the parties
who have not appealed, when refusing to do so, would result in making inconsistent, contradictory or unworkable decision. In other words, it is to
avoid inconsistent and contradictory decision on the same question in the same suit in order to adjudge the right of the parties according to justice,
equity and good conscience. But, as the rule does not confer unrestricted right to open a decree which has become final, it must be exercised with
great care and caution.
Order 41 Rule 33, in our opinion, should be read together with Order 41 Rule 4. Order 41 Rule 4 runs as follows:
�Where there are more plaintiffs 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 be.
With regard to Order 41 Rule 4, CPC, the Supreme Court has in Mahabir Prasad vs. Jage Ram, AIR 1971 SC 742, held:
The power may be exercised when other person who were parties to the proceeding before the subordinate Court and against whom a decree
proceeded on a ground which was common to the appellant and to those other persons are either not impleaded as parties to the appeal or are
impleaded as respondents.
In view of Rules 4 and 33 of Order 41, the appellate Court has jurisdiction to grant relief to the nonappealing parties and those other
defendants who had not been impleaded as parties or respondents to an appeal depending on particular case.
Keeping the above principle in view, let us examine the case on hand. The four defendants have allowed the decree of the first appellate Court
to become final, by not appealing against the decree. The decree was passed against them also on a ground common to the appellant and,
therefore, if the decree is to be set aside, it would be sat aside on the ground common to the parties to the suit. But, if it is to be set aside in favour
of the appellantdefendant only, there would be contradictory decision which will not be workable. In that view of the matter, we are of the opinion
that, if the decree is set aside in favour of the appellantdefendant as well as other defendants by awarding costs, it would meet the ends of justice,
although they have not impleaded as parties or respondents to the appeal. We do so accordingly.
In the result, the appeal is allowed. The impugned judgment and decree dated 20.4.88 passed by the Assistant District Judge (1) Guwahati in
Money Suit No. 135 of 1982 are set aside and the case is sent back to the trial Court. The appellant and/or other defendants are permitted to file
written statement on or before 28.6.92 before the trial Court on payment of the costs of Rs. 1,000/ to the plaintiffbank. `If the defendants or any of
them files written statement within the aforesaid period, the trial Court shall proceed with the suit in accordance with law; and if any of the
defendants dogs not file written statement, the decree dated 20.4.88 shall be restored. The parties are directed to appear before the trial Court oh
1.6.92 for receiving direction of that Court. The appeal is allowed and disposed of with costs of Rs. 1,500/ payable by the defendants appellant to
the respondentbank.