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CASE NO.: Appeal (civil)  5945 of 2007

PETITIONER: Soni Dineshbhai Manilal and others

RESPONDENT: Jagjivan Mulchand Chokshi

DATE OF JUDGMENT: 14/12/2007

BENCH: S.B. SINHA & HARJIT SINGH BEDI

JUDGMENT: JUDGMENT (Arising out of SLP (C) NO. 19295 OF 2005) WITH

CIVIL APPEAL NO. 5946 OF 2007 (Arising out of SLP (C) NO. 7818 OF 2006)

Jagjivan Mulchand Chokshi                                       \005. Appellant  

               Versus

Soni Dineshbhai Manilal and others                              \005.. Respondents S.B. SINHA, J.

1.      Leave granted.

2.      Appellants in both the appeals are before us, aggrieved by and dis- sastisfied with the judgment and order dated 6th April, 2005 passed by a  learned Single Judge of the High Court of Gujarat in Second Appeal No.37  of 1998.  

3.      For the purpose of determining the question involved in these appeals,  Soni Dineshbhai Manilal and others are being referred to as the appellants,  while Jagjivan Mulchand Chokshi is being referred to as the respondent.   4.      Appellants\022 father and the respondent were  partners of a partnership  firm known as \021Bhagyoday Engineering Company\022.  A decision was taken to  dissolve the said firm.  A deed of dissolution was entered into on the 9th day  of September, 1965.     A suit for dissolution of the partnership firm and  accounts was filed by the respondent herein, inter alia on the premise of the  existing dispute in regard to shares of the parties in the said partnership firm.    

5.      The suit was dismissed on 29th July, 1975.  However, the appeal  preferred thereagainst was allowed holding that the respondent-plaintiff was  entitled to 56 % shares, whereas the father of the appellants was entitled to  44 % share.  A decree was also passed for accounts for the period 19th  January, 1960 and 9th September, 1965.  Father of the appellants filed a  second appeal before the High Court which was partly allowed, whereby the  shares of the parties were determined at 50 % each.   The said decree was  affirmed by this Court by its order dated 25th February, 1994.        6.      An application was thereafter filed for initiation of a final decree  proceedings.  A Court Commissioner was appointed for taking accounts.   The Commissioner submitted his report on 13th August, 1986.   Objection  thereto was filed by the father of the appellants.  An application was also  filed for permission to cross-examine the Court Commissioner. The same

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was rejected.  A civil revision application was filed by the father of the  appellants which was dismissed by an order dated 22nd Aril, 1996, stating :-       \023    Mr. D.K. Acharya, learned Advocate for the petitioner  seeks leave to withdraw the Civil Revision Application.  Leave  granted.  Rejected as withdrawn.            It is, however, clarified that the petitioner-defendant  would be entitled to prove or disprove the accounts that may be  submitted by the parties with regard to the partnership firm.\024

7.      An application was also filed by the father of the appellants before the  trial court to allow a Chartered Accountant to verify the records and,   accounts books.  The said prayer was also rejected.         8.      By an order dated 2nd May, 1997 the trial court rejected the objections  of the appellants opining :-       \023Taking into consideration, the submissions, replies and  evidences of both the sides, Civil Court had rejected the said  suit and against the said order, Appeal No. 79 of 1975 was  being admitted in the District Court.  The appellate Court had  quashed the order of the civil Court and share of the Plaintiff  was decided and it was ordered in respect of accounts to  appoint the Court Commissioner for taking accounts.   Thereafter in the Hon\022ble High Court and in the Hon\022ble  Supreme Court, the said matter was filed and thereafter to draw  final decree the same matter was adjourned.      

    In the said case, being kept for hearing on the debated  point in respect of legal question, but both he parties were given  proper time and reasonable opportunity, even though, their  rights were closed as there was no submissions.            In the said case, Commissioner\022s Report at Mark 44/1,  which was being admitted in evidence according to provisions  of Order 2-G Rule 11, 12, which was taken on record by Exh.  124 for taking into consideration for evidence.  In the said case,  the record and Commissioner\022s report which were produced  before me, being taken into consideration and if determined as  per law, the Commissioner\022s report and the finding which were  given by taking into account the fact, are found reasonable and  when said report was given by the defendant by violating the  provisions of existing law, have been failed to prove the same,  in that circumstances, it is found that it is reasonable and just to  give sanction to the details of the report of Court  Commissioner.  So taking into consideration the facts and  documentary evidence produced, I pass the following order in  the interest of justice.\024

9.      An appeal preferred thereagainst, however, was allowed by an order  dated 11th December, 1997.    Cross-objection was filed by the respondent  therein and while rejecting the said cross-objection, the first appellate court  observed :-           \023The cross objections Ex.11 filed by the respondent plaintiff are  hereby rejected.  However, the learned trial Judge is directed to  allow the said party to agitate the question regarding interest  and the same be decided as per law. \023        10.     Respondent filed a second appeal thereagainst which has been  allowed by reason of the impugned judgment.      

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11.     Mr. Pravin Satale, learned counsel appearing on behalf of the  appellant submitted :       i)      having regard to the provisions of Order XLIII Rule 1 sub-rule  (u)  of the Code of Civil Procedure the second appeal was not  maintainable ;  ii)     High Court committed a serious error in relying upon the orders  passed by the trial court from time to time without taking into  consideration the fact that in view of Section 105 of the Code of  Civil Procedure, such orders are open to  challenge in an appeal  preferred against a final order ; iii)    The Commissioner appointed to take accounts should be  allowed to be cross-examined by a party taking objection to his  report and in any event, he is entitled to adduce his own  evidence in support of his objection.   iv)     The Commissioner having ignored vital facts including non- production of books of accounts and ledger, his report could not  have been accepted.  

12.     Ms. Meenakshi Arora, learned counsel appearing on behalf of the  respondent, on the other hand, contended :       i)      The appeal preferred by the respondent being a composite one  both against the order dismissing the cross-objection as also the  appeal preferred by the appellants, a second appeal was  maintainable.  ii)     A distinction must be made between a Commissioner appointed  to examine accounts and other Commissioners inasmuch as the  report in the former case is to be treated as evidence in the suit.   In any view of the matter, keeping in view the facts and  circumstances of the case, in particular the fact that the  preliminary decree was passed as far back as 13th October,  1978, the impugned judgment should not be interfered with.   

13.     The learned trial Judge inter alia opined that opportunities have been  granted to the appellants to adduce evidence which they did not avail.  

14.     The learned Court of Appeal, on the other hand, held that the  appellants were prejudiced as the objections filed by them had not been   considered.       15.     In the final decree proceeding, one Shri Vardhilal A. Shah was  appointed as a Commissioner.  He was asked to examine the accounts of the  dissolved partnership firm.  He submitted a detailed report.  It is not the case  of the appellants that while preparing the said report he was not allowed to  place any document before him or call for any document which was in  custody or possession of the respondent.  For the purpose of determining the  issue referred to him by the Court in terms of Order XXVI Rule 11 of the  Code of Civil Procedure, principally the books of accounts which were  maintained by the firm were required to be taken into consideration.  If any  additional books of accounts or any other document was required to be taken  into consideration therefor, it was for the appellants to point out the same.  It  appears that the first objection which was taken by the appellant was non  production of \023ublek\024 books and stock books.  An objection was filed to that  effect on 1st July, 1985 which was rejected by an order dated 26th July, 1985.   It does not appear that any civil revision application was filed thereagainst.   The said order, therefore, attained finality.  

16.     Another application was filed in 1994 to cross-examine the  Commissioner.  The same was rejected on 29th April, 1995.  However,  an  observation was made by the trial court that the \023averments are fabricated  with bad intention by the defendant and that the delay may be caused for  recovery of decretal amount\024.  Another objection filed by the respondent  was rejected by a very detailed order dated 31st January, 1996 not only   taking into consideration the provisions of law but also the precedents

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operating in the field. Conduct of the parties had also been taken into  consideration therein.  The learned Judge also considered the nature of the  objections raised, one of which, we may notice, is that the Commissioner  was not an expert in accounts.  It was pointed that no such objection was  raised at the time of the appointment of the Commissioner.  

17.     Appellants\022 principal grievance centers round the non-production of  \023ublak\024 books which, as noticed hereinabove, had been dealt with in the  earlier orders of the court.  It was pointed out that the Commissioner had  prepared a balance sheet inter alia on the basis of the purchase bills and the  sales bills.  

18.     A civil revision application, as noticed hereinbefore, was filed against  one of the orders, which was later withdrawn.  It is accepted at the Bar that  the other civil revision application was also withdrawn.          

19.     The High Court in its impugned judgment had taken the said facts into  consideration.  Order XXVI Rule 11 of the Code of Civil Procedure provides  for appointment of a commissioner to examine or adjust accounts, if  necessary.  He is competent to decide all questions raised before him,  taking  into consideration all aspects of the matter.  He is to assist the Court.  A  Commissioner\022s report can be set aside only upon assignment of proper and  sufficient reasons.  In the event any defect in the conduct of enquiry by him  is found out, the court may issue any further directions.  A further enquiry  can also be ordered.  A report of the Commissioner is a part of the record.  It  is to be treated as evidence in the suit.

20.     Rule 16 of Order XXVI of the Code of Civil Procedures provides for  powers of the Commissioners which is in the following terms :-

\02316.  Powers of Commissioners \026 Any Commissioner appointed  under this Order may, unless otherwise directed by the order of  appointment, -

(a)     examine the parties themselves and any witness whom  they or any of them may produce, and any other person  whom the Commissioner thinks proper to call upon to  give evidence in the matter referred to him ; . (b)     call for and examine documents and other things relevant  to the subject of inquiry ;

(c)     at any reasonable time enter upon or into any land or  building mentioned in the order.\024    21.     Appellants\022 father was, therefore, entitled to raise all the contentions  in regard to non-production of books of accounts and other maters.  It was  also permissible for him to examine witnesses in support of his case before  the Commissioner.  It may be true that any order passed can be questioned in  the grounds taken in the appeal against the final orders, but such  interlocutory orders are required to be challenged.  Nothing has been shown  before us that such interlocutory orders and particularly those which are  referred to hereinbefore had specifically been challenged in the  Memorandum of Appeal but the said interlocutory orders were not subjected  to revision.  What is essential is that they should not have been appealed  against.  If a revision has been filed which is a part of the appellate  jurisdiction, although stricto sensu, doctrine of merger may not apply but  Section 105 of the Code of Civil Procedure also would not apply in such  cases.  Each of those orders attained finality.     

.       It has been held in Shankar Ramchandra Abhyankar vs,  Krishnaji  Dattatreya Bapat : AIR 1970 SC 1, that civil revision is a part of appellate  jurisdiction.          22.     As noticed hereinbefore, before the Court, objections to the report of

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the Commissioner had been taken.  Several orders were passed.  There is  nothing on record to show that the appellant intended to adduce any  evidence in support of his case.  In fact he was permitted to do so.   

                                 23.     It may be true that in view of Rule 1(u) of Order XVIII a second  appeal was not maintainable but the scope of an appeal under Section 100 of  the Code of Civil Procedure is narrower.  If the appeal had been entertained  upon hearing both the parties, this Court may not exercise its extra ordinary  jurisdiction to set aside that order, as what matters most is to see whether  substantial justice has been done to the parties and not the technicalities  involved therein.   

24.     In a given case the appellate court in exercise of its inherent  jurisdiction can convert one type of appeal to the other.  Forum for  preferring a second appeal as also an appeal under Order XVIII Rule 1(u) is  the same, namely the High Court.  As the scope of an appeal under Order  XVIII Rule 1(u) is wider than a second appeal, the appellants on their own  showing are not prejudiced in any manner, if the High Court proceeded to  consider the question involved in the appeal in its impugned judgment.

25.     Even substantial questions of law were framed and the same have  been answered.  We, however, although agree that technically a second  appeal was not maintainable from one part of the judgment, keeping in view  of the fact that the matter is pending for more than 40 years and in view of  the nature of the dispute as also the quantum of amount involved, we are of  the opinion that it is not a fit case where we should exercise our  discretionary jurisdiction under Article 136 of the Constitution of India.  It is  now well settled that this Court may decline to exercise its jurisdiction,  although it would be lawful to do so.  [ See Management, Pandiyan  Roadways Corporation Ltd. vs.  N. Balakrishnan :  2007 (7) SCALE 758 ].              26.     In the above circumstances both the appeals fail and are dismissed.   However, in the facts and circumstances of the case there shall be no order  as to costs.