1. The appellants, who were the plaintiffs, sued the respondents as defendants for rent and obtained a decree for a portion of the claim. The plaintiffs, then appealed against the disallowance of the balance of the amount claimed and the defendants did not prefer any cross-appeal nor took objections under O. 41, R. 22 of the CPC. The learned District Judge, however, on the appeal of the plaintiffs dismissed the suit entirely. We think the learned Judge was wrong in doing so. As pointed out in the case of Ganga Dhar Muradi v. Banabashi Padhari . AIR 1914 Cal 722, ordinarily R. 33 should be limited to those cases where as a result of the appellate Court's interference with the decree in favour of the appellant, further interference is required in order to adjust the rights of the parties in accordance with justice, equity and good conscience.
2. Farther, as a pointed out in the case of Abjal Majhi v. Intu Bepari . 1916 32 IC 494., R. 33, O. 41 is very widely expressed, but it should not be applied so as to enable a party litigant to ignore the other provisions of the Code or the provisions of Statutes like those which relate to limitation or payment of Court-fees. Even assuming that R. 33 is applicable to a case of this nature, the judicial discretion vested in the Court of appeal below was not properly exercised in this case.
3. We accordingly set aside the decree of the lower appellate Court and restore that of the Court of first instance. Each party will bear his own costs in this Court as well as in the Court of Appeal below.
V.B/R.K
4. Appeal allowed.