Banarsi And Ors vs Ram Phal on 17 February, 2003
In Banarsi v. Ram Phal this Court construing
the provisions of Order 41 Rule 33 CPC held that
this provision confers powers of the widest
amplitude on the appellate court so as to do
complete justice between the parties. This Court
further held that such power is unfettered by
considerations as to what is the subject-matter of
the appeal or who has filed the appeal or
whether the appeal is being dismissed, allowed
or disposed of while modifying the judgments
appealed against. The learned Judges held that
one of the objects in conferring such power is to
avoid inconsistency. inequity and inequality in
granting reliefs and the overriding consideration
is achieving the ends of justice. The learned
Judges also held that the power can be exercised
subject to three limitations: firstly, this power
cannot be exercised to the prejudice of a person
who is not a party before the court; secondly, this
power cannot be exercised in favour of a claim
which has been given up or lost; and thirdly, the
power cannot be exercised when such part of the
decree which has been permitted to become final
by a party is reversed to the advantage of that
party."