As noticed above, the short question falls
consideration is whether a second appeal challenging the
decision of the trial court as confirmed in appeal is maintainable
at the instance of a defendant who did not challenge the
decision of the trial court in appeal. It is now settled by a long
catena of decisions that only a person who is aggrieved by the
appellate decree is entitled to file a second appeal (See
Banarsi v. Ram Phal [(2003) 9 SCC 606]).
Rule 4 of Order 41 of the Code confers power on the appellate
court to reverse or vary the decision appealed against in favour
of a non-appealing party, if the appeal proceeds on a ground
common to all. The policy of this rule is to avoid contradictory
decisions on same questions. Rule 33 of Order 41 of the Code
confers power on the appellate court to pass any decree and
make any order which ought to have been passed or made or
make such further or other decree or order as the case may
require, notwithstanding that the appeal is as to part only of the
decree, in favour of all or any of the parties, although such
parties may not have filed any appeal or cross objection. The
policy of this rule is to enable the appellate court to do
complete justice to the parties. The power of the court under
the aforesaid rules can be exercised by the court only as a
necessary consequence of the reliefs to be granted to the
appellant when the court finds that the appeal must succeed on
its merits and not independent of it. As such, merely for the
reason that the appellate court has power to interfere with the
decree passed by the trial court against a non-appealing party,
it cannot be said that the decree against the non-appealing
party is also the subject matter of the appeal. If the correctness
of the decree passed by the trial court against the fifth
defendant was not the subject matter of the appeal, it cannot
be said that there is any reason for the fifth defendant to feel
aggrieved by the decision of the appellate court. If the fifth
defendant cannot be treated as a person aggrieved by the
decision of the appellate court, it cannot be said that he is
entitled to challenge the decision of the appellate court in a
second appeal. If it is held that the fifth the defendant is
entitled to challenge the decree of the trial court as confirmed
by the appellate court in a second appeal, the said decision will
have the effect of conferring on the fifth defendant a right to
prefer a second appeal directly against the decision of the trial
court. A similar view has been taken by the High Court of
Madras in Perumal v. Gurunathan and others (AIR 1996
Madras 415). The learned Senior Counsel for the appellant,
relying on the decision of the Andhra Pradesh High Court in
P.Narasimham v. P.V.Narasimham (AIR 1973 Andhra
Pradesh 162), contended that where a suit was decreed against
all the defendants on a common finding and if the common
finding is reversed in appeal by one of the defendants, the
other defendants can certainly challenge the decision of the
appellate court. The said decision cannot have any application
to the facts of the present case, for, the same was a case where
the appellate court allowed the appeal and varied the decision
of the trial court. As far the present case is concerned, the
appellate court has only confirmed the decision of the trial
court. For the aforesaid reasons, I hold that this second
appeal is not maintainable and the same is, accordingly,
dismissed.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
Dated:18TH DAY OF NOVEMBER 2015
RSA.No. 726 of 2014 (C)
THOMAS GEORGE,
Vs
A.T.JOSEPH,
Citation;AIR 2016(NOC)274 kerala
The fifth defendant in a suit for damages is the
appellant in this second appeal.
2. The first defendant is a company publishing a
newspaper and defendants 2 to 4 are the chief editor, printer
and reporter respectively of the newspaper published by the
first defendant. The case of the plaintiff is that at the instance
of the fifth defendant, defendants 1 to 4 published a
defamatory news item in their newspaper on 22.11.2007
concerning the plaintiff and the same affected the reputation of
the plaintiff. The fifth defendant remained ex-parte.
Defendants 1 to 4 contested the suit. The contention raised by
the defendants 1 to 4 was that what is reported by them in the
news item is true and therefore, the plaintiff has no cause of
action against them. The trial court accepted the case of the
plaintiff and passed a decree permitting him to recover a sum
of Rs.1,00,000/- with interest from defendants 1 to 5. The fifth
defendant did not challenge the decision of the trial court in
appeal. Defendants 1 to 4 though challenged the decision of
the trial court in appeal, the appellate court did not interfere
with the decision of the trial court. Defendants 1 to 4 did not
challenge the decision of the appellate court. However, the fifth
defendant, who was the second respondent in the appeal
preferred by defendants 1 to 4, has preferred this second
appeal challenging the decision of the trial court as confirmed
in appeal.
3. When the second appeal came up for
admission, this Court entertained a doubt as to the
maintainability of the second appeal challenging the decision of
the trial court as confirmed in appeal by the fifth defendant
who did not challenge the decision of the trial court in appeal.
Consequently, the learned counsel on either side were directed
to address on the question of maintainability of the second
appeal. Adv.M.Gopikrishnan Nambiar was also appointed as
amicus curiae in the matter.
4. Heard the learned Senior counsel for the
appellant, the learned counsel for the first respondent as also
the learned amicus curiae.
5. As noticed above, the short question falls
consideration is whether a second appeal challenging the
decision of the trial court as confirmed in appeal is maintainable
at the instance of a defendant who did not challenge the
decision of the trial court in appeal. It is now settled by a long
catena of decisions that only a person who is aggrieved by the
appellate decree is entitled to file a second appeal (See
Banarsi v. Ram Phal [(2003) 9 SCC 606]). As such, I must
first consider the question as to whether the fifth defendant can
be regarded as a person aggrieved by the decision of the
appellate court. As noticed above, the decision impugned in
this second appeal is a decision by which the appellate court
dismissed the appeal preferred by defendants 1 to 4
challenging the decree passed against them by the trial court.
The fifth defendant has not challenged the decree passed
against him by the trial court in appeal and consequently the
said decision has become final as against him. As such, it
cannot be said that the sustainability or otherwise of the decree
passed by the trial court against fifth defendant was the
subject matter of the appeal. True, Rules 4 and 33 of Order 41
of the Code of Civil Procedure ('the Code' for short) confers
power on the appellate court to reverse or vary the decision of
the trial court in favour of a non appealing party. Rules 4 and
33 of Order 41 of the Code read thus:
"4. One of several plaintiffs or defendants may obtain
reversal of whole decree where it proceeds on ground
common to all.--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."
"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 35A, in pursuance of any objection on
which the Court from whose decree the appeal is preferred
has omitted or refused to make such order."
Rule 4 of Order 41 of the Code confers power on the appellate
court to reverse or vary the decision appealed against in favour
of a non-appealing party, if the appeal proceeds on a ground
common to all. The policy of this rule is to avoid contradictory
decisions on same questions. Rule 33 of Order 41 of the Code
confers power on the appellate court to pass any decree and
make any order which ought to have been passed or made or
make such further or other decree or order as the case may
require, notwithstanding that the appeal is as to part only of the
decree, in favour of all or any of the parties, although such
parties may not have filed any appeal or cross objection. The
policy of this rule is to enable the appellate court to do
complete justice to the parties. The power of the court under
the aforesaid rules can be exercised by the court only as a
necessary consequence of the reliefs to be granted to the
appellant when the court finds that the appeal must succeed on
its merits and not independent of it. As such, merely for the
reason that the appellate court has power to interfere with the
decree passed by the trial court against a non-appealing party,
it cannot be said that the decree against the non-appealing
party is also the subject matter of the appeal. If the correctness
of the decree passed by the trial court against the fifth
defendant was not the subject matter of the appeal, it cannot
be said that there is any reason for the fifth defendant to feel
aggrieved by the decision of the appellate court. If the fifth
defendant cannot be treated as a person aggrieved by the
decision of the appellate court, it cannot be said that he is
entitled to challenge the decision of the appellate court in a
second appeal. If it is held that the fifth the defendant is
entitled to challenge the decree of the trial court as confirmed
by the appellate court in a second appeal, the said decision will
have the effect of conferring on the fifth defendant a right to
prefer a second appeal directly against the decision of the trial
court. A similar view has been taken by the High Court of
Madras in Perumal v. Gurunathan and others (AIR 1996
Madras 415). The learned Senior Counsel for the appellant,
relying on the decision of the Andhra Pradesh High Court in
P.Narasimham v. P.V.Narasimham (AIR 1973 Andhra
Pradesh 162), contended that where a suit was decreed against
all the defendants on a common finding and if the common
finding is reversed in appeal by one of the defendants, the
other defendants can certainly challenge the decision of the
appellate court. The said decision cannot have any application
to the facts of the present case, for, the same was a case where
the appellate court allowed the appeal and varied the decision
of the trial court. As far the present case is concerned, the
appellate court has only confirmed the decision of the trial
court. For the aforesaid reasons, I hold that this second
appeal is not maintainable and the same is, accordingly,
dismissed.
Before parting with this judgment, I place on record
my deep appreciation and gratitude to Adv.M.Gopikrishnan
Nambiar, the learned amicus curiae for the able assistance
rendered.
Sd/-
P.B.SURESH KUMAR, JUDGE.
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consideration is whether a second appeal challenging the
decision of the trial court as confirmed in appeal is maintainable
at the instance of a defendant who did not challenge the
decision of the trial court in appeal. It is now settled by a long
catena of decisions that only a person who is aggrieved by the
appellate decree is entitled to file a second appeal (See
Banarsi v. Ram Phal [(2003) 9 SCC 606]).
Rule 4 of Order 41 of the Code confers power on the appellate
court to reverse or vary the decision appealed against in favour
of a non-appealing party, if the appeal proceeds on a ground
common to all. The policy of this rule is to avoid contradictory
decisions on same questions. Rule 33 of Order 41 of the Code
confers power on the appellate court to pass any decree and
make any order which ought to have been passed or made or
make such further or other decree or order as the case may
require, notwithstanding that the appeal is as to part only of the
decree, in favour of all or any of the parties, although such
parties may not have filed any appeal or cross objection. The
policy of this rule is to enable the appellate court to do
complete justice to the parties. The power of the court under
the aforesaid rules can be exercised by the court only as a
necessary consequence of the reliefs to be granted to the
appellant when the court finds that the appeal must succeed on
its merits and not independent of it. As such, merely for the
reason that the appellate court has power to interfere with the
decree passed by the trial court against a non-appealing party,
it cannot be said that the decree against the non-appealing
party is also the subject matter of the appeal. If the correctness
of the decree passed by the trial court against the fifth
defendant was not the subject matter of the appeal, it cannot
be said that there is any reason for the fifth defendant to feel
aggrieved by the decision of the appellate court. If the fifth
defendant cannot be treated as a person aggrieved by the
decision of the appellate court, it cannot be said that he is
entitled to challenge the decision of the appellate court in a
second appeal. If it is held that the fifth the defendant is
entitled to challenge the decree of the trial court as confirmed
by the appellate court in a second appeal, the said decision will
have the effect of conferring on the fifth defendant a right to
prefer a second appeal directly against the decision of the trial
court. A similar view has been taken by the High Court of
Madras in Perumal v. Gurunathan and others (AIR 1996
Madras 415). The learned Senior Counsel for the appellant,
relying on the decision of the Andhra Pradesh High Court in
P.Narasimham v. P.V.Narasimham (AIR 1973 Andhra
Pradesh 162), contended that where a suit was decreed against
all the defendants on a common finding and if the common
finding is reversed in appeal by one of the defendants, the
other defendants can certainly challenge the decision of the
appellate court. The said decision cannot have any application
to the facts of the present case, for, the same was a case where
the appellate court allowed the appeal and varied the decision
of the trial court. As far the present case is concerned, the
appellate court has only confirmed the decision of the trial
court. For the aforesaid reasons, I hold that this second
appeal is not maintainable and the same is, accordingly,
dismissed.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
Dated:18TH DAY OF NOVEMBER 2015
RSA.No. 726 of 2014 (C)
THOMAS GEORGE,
Vs
A.T.JOSEPH,
Citation;AIR 2016(NOC)274 kerala
The fifth defendant in a suit for damages is the
appellant in this second appeal.
2. The first defendant is a company publishing a
newspaper and defendants 2 to 4 are the chief editor, printer
and reporter respectively of the newspaper published by the
first defendant. The case of the plaintiff is that at the instance
of the fifth defendant, defendants 1 to 4 published a
defamatory news item in their newspaper on 22.11.2007
concerning the plaintiff and the same affected the reputation of
the plaintiff. The fifth defendant remained ex-parte.
Defendants 1 to 4 contested the suit. The contention raised by
the defendants 1 to 4 was that what is reported by them in the
news item is true and therefore, the plaintiff has no cause of
action against them. The trial court accepted the case of the
plaintiff and passed a decree permitting him to recover a sum
of Rs.1,00,000/- with interest from defendants 1 to 5. The fifth
defendant did not challenge the decision of the trial court in
appeal. Defendants 1 to 4 though challenged the decision of
the trial court in appeal, the appellate court did not interfere
with the decision of the trial court. Defendants 1 to 4 did not
challenge the decision of the appellate court. However, the fifth
defendant, who was the second respondent in the appeal
preferred by defendants 1 to 4, has preferred this second
appeal challenging the decision of the trial court as confirmed
in appeal.
3. When the second appeal came up for
admission, this Court entertained a doubt as to the
maintainability of the second appeal challenging the decision of
the trial court as confirmed in appeal by the fifth defendant
who did not challenge the decision of the trial court in appeal.
Consequently, the learned counsel on either side were directed
to address on the question of maintainability of the second
appeal. Adv.M.Gopikrishnan Nambiar was also appointed as
amicus curiae in the matter.
4. Heard the learned Senior counsel for the
appellant, the learned counsel for the first respondent as also
the learned amicus curiae.
5. As noticed above, the short question falls
consideration is whether a second appeal challenging the
decision of the trial court as confirmed in appeal is maintainable
at the instance of a defendant who did not challenge the
decision of the trial court in appeal. It is now settled by a long
catena of decisions that only a person who is aggrieved by the
appellate decree is entitled to file a second appeal (See
Banarsi v. Ram Phal [(2003) 9 SCC 606]). As such, I must
first consider the question as to whether the fifth defendant can
be regarded as a person aggrieved by the decision of the
appellate court. As noticed above, the decision impugned in
this second appeal is a decision by which the appellate court
dismissed the appeal preferred by defendants 1 to 4
challenging the decree passed against them by the trial court.
The fifth defendant has not challenged the decree passed
against him by the trial court in appeal and consequently the
said decision has become final as against him. As such, it
cannot be said that the sustainability or otherwise of the decree
passed by the trial court against fifth defendant was the
subject matter of the appeal. True, Rules 4 and 33 of Order 41
of the Code of Civil Procedure ('the Code' for short) confers
power on the appellate court to reverse or vary the decision of
the trial court in favour of a non appealing party. Rules 4 and
33 of Order 41 of the Code read thus:
"4. One of several plaintiffs or defendants may obtain
reversal of whole decree where it proceeds on ground
common to all.--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."
"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 35A, in pursuance of any objection on
which the Court from whose decree the appeal is preferred
has omitted or refused to make such order."
Rule 4 of Order 41 of the Code confers power on the appellate
court to reverse or vary the decision appealed against in favour
of a non-appealing party, if the appeal proceeds on a ground
common to all. The policy of this rule is to avoid contradictory
decisions on same questions. Rule 33 of Order 41 of the Code
confers power on the appellate court to pass any decree and
make any order which ought to have been passed or made or
make such further or other decree or order as the case may
require, notwithstanding that the appeal is as to part only of the
decree, in favour of all or any of the parties, although such
parties may not have filed any appeal or cross objection. The
policy of this rule is to enable the appellate court to do
complete justice to the parties. The power of the court under
the aforesaid rules can be exercised by the court only as a
necessary consequence of the reliefs to be granted to the
appellant when the court finds that the appeal must succeed on
its merits and not independent of it. As such, merely for the
reason that the appellate court has power to interfere with the
decree passed by the trial court against a non-appealing party,
it cannot be said that the decree against the non-appealing
party is also the subject matter of the appeal. If the correctness
of the decree passed by the trial court against the fifth
defendant was not the subject matter of the appeal, it cannot
be said that there is any reason for the fifth defendant to feel
aggrieved by the decision of the appellate court. If the fifth
defendant cannot be treated as a person aggrieved by the
decision of the appellate court, it cannot be said that he is
entitled to challenge the decision of the appellate court in a
second appeal. If it is held that the fifth the defendant is
entitled to challenge the decree of the trial court as confirmed
by the appellate court in a second appeal, the said decision will
have the effect of conferring on the fifth defendant a right to
prefer a second appeal directly against the decision of the trial
court. A similar view has been taken by the High Court of
Madras in Perumal v. Gurunathan and others (AIR 1996
Madras 415). The learned Senior Counsel for the appellant,
relying on the decision of the Andhra Pradesh High Court in
P.Narasimham v. P.V.Narasimham (AIR 1973 Andhra
Pradesh 162), contended that where a suit was decreed against
all the defendants on a common finding and if the common
finding is reversed in appeal by one of the defendants, the
other defendants can certainly challenge the decision of the
appellate court. The said decision cannot have any application
to the facts of the present case, for, the same was a case where
the appellate court allowed the appeal and varied the decision
of the trial court. As far the present case is concerned, the
appellate court has only confirmed the decision of the trial
court. For the aforesaid reasons, I hold that this second
appeal is not maintainable and the same is, accordingly,
dismissed.
Before parting with this judgment, I place on record
my deep appreciation and gratitude to Adv.M.Gopikrishnan
Nambiar, the learned amicus curiae for the able assistance
rendered.
Sd/-
P.B.SURESH KUMAR, JUDGE.
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