P L D 1964 Dacca 119 (PLP)

9. The learned Advocate for the appellant has placed his reliance on the following passage occurring in the decision of the Calcutta High Court in the case of Gangadhar Muradi and another v. Banabashi Padihri and others. "No hard and fast rule can be laid down ; but I think it may be 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 rights of the parties in accordance with justice, equity and good conscience."

10. The learned Advocate, therefore, claims existence of the limitation as indicated above in exercising the discretion conferred by the said rule 33 of Order XLI. As we proceed to examine the said rule, we cannot lose sight of the fact that the learned Judge's observation itself is qualified by word `ordinarily'. This indicates that there is no absolute statutory prohibition but what is suggested is that interference under the said rule 33 may be made when some relief is granted to the appellant is the adjustment of rights if parties are found necessary. Moreover, it should also be remembered that the learned Judges themselves have said that no hard and fast rule can be laid down. They have, therefore, observed that the rule is to be applied with discretion.

11. Reliance has also been placed by the learned Advocate on another decision of the Calcutta High Court in the case of Abjal Majhi and others v. Intu Bapri reported in the same volume of the Calcutta Law Journal at page 391 which appears to support the views expressed in Gangadhar Muradi's case.

12. Mr. De further calls in aid of his contention, Full Bench decision of the Allahabad High Court in the case of Rangom Lai and another v. Jhondu (I L R 34 All. 32). In that case the learned Judges while recognising that the object of the rule 33 is manifestly to enable the Court to do complete justice, appears to have put a limitation by giving an example of exercise of such powers. According to the learned Judges an occasion for exercise of such powers may arise when it may appear to be essential that in order to grant relief to the appellant, some relief should also be given to the respondent even in the absence of cross‑appeal or cross‑objection. We must, however, say that the example as given above is by no means exhaustive but illustrative.

13. The question raised and arguments advanced in the light of the authorities cited above, require a close examination of the material part of the said rule 33 of Order XLI which is in the following terms :‑‑ "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 to 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." The rule is couched in very wide terms and we do not find words of limitation in the said provision as contended by the learned Advocate for the appellant. The Legislature has left the power conferred by the rule to the discretion of the Court to be exercised on sound judicial principles. In dealing with the question of exer?cising of a discretion, in the case of Sasannah Sharop v. Wakefield and another (1891 A C 173). Halsbury L. C. observed : "It is to be, not arbitrary, vague and fanciful, but legal and regular." Keeping these principles in view, rule 33 may be availed of by an appellate Court if necessary in the ends of justice. It may, therefore, be said that it is not mandatory but discretionary in its application and it should be exercised with due care and caution.

14. We repeatedly asked Mr. De to point out words of limitation in the statute, He cited some cases which are all specific cases on peculiar facts of those cases and nowhere in any one of them any general proposition of law limiting the operation of the rule has been laid down. He invited us to assume limitation as envisaged in the aforesaid cases cited by him. We have no hesitation to say that in accordance with the well‑laid judicial principles of interpretation, we are unable to read words when they are absent from the statute.

15. On a scrutiny of the said rule 33, we find that it provides that the appellate Court shall have powers to make an order which ought to have been passed by the Court appealed from. In this case, it is not contended by the learned Advocate for the appellant that the order as made by the learned District Judge is one which the Court of first instance should not have made. The rule clearly lays down that the powers as contemplated 8 above may be exercised whether or not the appeal is with regard to a part only and that such an order may be made in favour of the respondents or parties although they may not have preferred any appeal or objection. Mr. De's contention that in the absence of an appeal or objection, the appellate Court cannot grant any relief is negatived by the presence of the words `may be exercised in favour of all or any of the parties although such respondents or parties may not have filed any appeal or objection' in the said rule 33 itself. The point raised by Mr. De has, therefore, no substance.

16. The views we have expressed above find support in a Full Bench decision of the Madras High Court in the case of Subramanian v. Sinnamal (A I R 1930 Mad. 801). To the same effect is also the Full Bench decision in the case of Rupjan Bibee v. Abdul Kadir Bhuiya and others (I L R 31 Cal. 643).

17. We would also like to say that the aforesaid Full Bench case of the Allahabad High Court reported in 34 All. 32 on which Mr. De placed great reliance came to be considered by the Division Bench decision of that Court in the case of Hira Lai v. B. Firangi Lai and another (A I R 1955 All. 562), and it was held that the powers conferred by the rule 33 of Order XLI on an appellate Court are very wide and the decision in the Allahabad Full Bench case reported in 34 All. 32 was based on the particular facts of that case and, therefore, it could not have the effect of curtailing the powers given to an appellate Court under the said rule.

18. Scope of rule 33 of Order XLI also came to be considered by the Federal Court of India in the case of Sir Hari Shanker Paul and another v. Anath Nath Mitter and another (1949 F C 106), and the following observation of the learned Judges fully supports our views expressed above :‑ "As regards the second point raised by the appellants, it cannot be disputed that in a proper case the appellate Court can, under the provision of rule 33, Order XLI, Civil P. C., vary or reverse a decree or order of the Court below even in favour of a party who has not preferred any appeal or cross‑objection. These powers indeed should be cautiously used with due regard to the circumstances of each individual case, but no rigid rule can be laid down fettering the discretion of the Court in such matters which the Legislature has for best of reasons, left unfettered"

19. Rule 33 of Order XLI appears to have been framed on the basis of rule 4 of Order LVIII of the Rules of the Supreme Court of England which makes provisions for a Court of Appeal to amend, admit further evidence or draw inferences of fact. Material part of the said rule 4 is in the following terms " . . . The powers aforesaid may be exercised by the said Court, notwithstanding that the notice of appeal may be that part only of the decision may be reversed, and such powers may also be exercised in favour of all or any of the respondents or parties who may not have appealed from or complained of the decision. The Court of Appeal shall have such orders as to the whole or any part of the appeal as may be just."

20. Having regard to the similarity of the said Rules, the case of Attorney‑General v. Simption (1901 2 C D 671), is also an authority for the proposition that a Court of Appeal can make a proper order which ought to have been made by the Court of first instance although there may not be any cross‑appeal or cross‑objection by the party in whose favour the modification is made.

21. We must, however, make it clear that wide powers conferred by rule 33 of Order XLI involve a corresponding responsibility of exercising the same in extraordinary cases in the interest of justice. In this case we were satisfied that the discretion has been exercised judicially and in the ends of justice. Plaintiff obtained a declaration of his title and decree for joint possession obviously on the ground of his being a co‑sharer in the properties in question and unless he obtains a decree against defendants 2 to 6 who are also his co‑sharers, the decree already obtained by him will be futile if they oppose the plaintiff in joint possession in the absence of partition of the properties ; if he is forced to file such a partition suit, that suit is also liable to be dismissed for want of title against defendants 2 to

6. For the reasons stated above, this appeal fails and is dismissed with costs. Hearing fee being assessed at five gold Mohurs. CHOWDHURY, C. J.‑I agree. s. B./k. b. A. ?? Appeal dismissed.