Manilal and Others Vs. Jagjivan Mulchand Chokshi  Insc 1306 (14 December 2007)
Sinha & Harjit Singh Bedi
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 . Appellant Versus Soni Dineshbhai Manilal and others ..
Respondents S.B. SINHA, J.
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.
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.
Appellants father and the respondent were partners of a partnership firm
known as Bhagyoday Engineering Company. 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.
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.
application was thereafter filed for initiation of a final decree proceedings.
A Court Commissioner was appointed for taking accounts.
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 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 :- Mr. D.K. Acharya, learned
Advocate for the petitioner seeks leave to withdraw the Civil Revision
Application. Leave granted. Rejected as withdrawn.
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
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.
an order dated 2nd May,
1997 the trial court
rejected the objections of the appellants opining :- Taking 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.
in the Honble High Court and in the Honble Supreme Court, the said
matter was filed and thereafter to draw final decree the same matter was
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.
said case, Commissioners 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 Commissioners report which were produced before me,
being taken into consideration and if determined as per law, the
Commissioners 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.
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:- The 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.
Respondent filed a second appeal thereagainst which has been allowed by reason
of the impugned judgment.
Mr. Pravin Satale, learned counsel appearing on behalf of the appellant submitted
regard to the provisions of Order XLIII Rule 1 sub-rule (u) of the Code of
Civil Procedure the second appeal was not maintainable ;
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 ;
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.
The Commissioner having ignored vital facts including non- production of books
of accounts and ledger, his report could not have been accepted.
Ms. Meenakshi Arora, learned counsel appearing on behalf of the respondent, on
the other hand, contended :
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.
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.
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.
The learned trial Judge inter alia opined that opportunities have been granted
to the appellants to adduce evidence which they did not avail.
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.
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 ublek 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.
does not appear that any civil revision application was filed thereagainst.
said order, therefore, attained finality.
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 averments are
fabricated with bad intention by the defendant and that the delay may be caused
for recovery of decretal amount. 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 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.
Appellants principal grievance centers round the non-production of ublak
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.
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.
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
Commissioners 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.
Rule 16 of Order XXVI of the Code of Civil Procedures provides for powers of
the Commissioners which is in the following terms:- 16. Powers of
Commissioners Any Commissioner appointed under this Order may, unless
otherwise directed by the order of appointment, -
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 ;
for and examine documents and other things relevant to the subject of inquiry ;
any reasonable time enter upon or into any land or building mentioned in the
Appellants 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.
has been held in Shankar Ramchandra Abhyankar vs, Krishnaji Dattatreya Bapat :
AIR 1970 SC 1, that civil revision is a part of appellate jurisdiction.
noticed hereinbefore, before the Court, objections to the report of 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.
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.
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.
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 ].
the above circumstances both the appeals fail and are dismissed.
in the facts and circumstances of the case there shall be no order as to costs.