SONI DINESHBHAI MANILAL AND ORS.versusJAGJIVAN MULCHAND CHOKSHI

A              SONI DINESHBHAI MANILAL AND ORS.
                               v.
                 JAGJIVAN MULCHAND CHOKSHI

                          DECEMBER 14, 2007
B
            IS.B. SINHA AND HARJIT SINGH BEDI, JJ.]


        Code a/Civil Procedure, 1908:

C      Or XXVI r 11 and 16-Commission to examine accounts or adjust
  accounts-Appointment of-Held: Commissioner is competent to
  decide all questions raised before him, taking into consideration all
  aspects of the matter-He is to assist the Court-Commissioner's
  Report is part ofrecord and is to be treated as evidence in the suit-
  On facts, objection against Commissioner's report rejected-Civil
D revision application was not filed there against, thus, rejection order
  attained finality-Also appellant did not adduce any evidence in
  support <~f the objection raised though he was permitted to do so.

        ss. 100, 105 and Or XL!!! r I (u)---Second appeal -Maintainability
E of-On facts, appeal against order rejecting objections allowed- Cross
   objections raised by respondent, rejected-Respondent filing second
   appeal-Allowed by High Court-On appeal, held: The said
   interlocutory orders not subjected to revision-They should not have
   been appealed against-Ifrevision was filed, doctrine of merger and
F s I 05 would not be applicable-Each ofthose orders attainedfinality
  -In view of Or XLIJI r I (u) second appeal was not maintainable-
  Scope ofappeal u/s. I 00 narrower-Further, appellate court in exercise
   ofits inherent jurisdiction could convert one type ofappeal to other-
  In view of the facts of the case, interference under special leave
G jurisdiction declined-Constitution ofIndia, 195 0-Article 13 6.

         Final decree was passed in a suit for dissolution of the
    partnership firm of the appellants' father and the respondent and
    the shares of the parties were determined. Decree was also passed
                                    920
H
SONIDINESHBHAIMANILAL v.JAGJIVANMULCHAND 921
                CHOKSHI
for the accounts. Thereafter, application was filed for initiation of A
final decree proceedings. The Court Commissioner was appointed
for examining the accounts of the dissolved partnership firm. The
Commissioner submitted a report. Appellants' father raised
objections to the report. He also filed for permission to cross-examine
the Court Commissioner which was dismissed. Appellants' father B
then filed Civil Revision application which was dismissed as
withdrawn. Thereafter, application was filed to allow Chartered
Accountant to verify the records and accounts books and the same
was dismissed. Trial court rejected the objection raised by the
appellants to the Commissioner's report. Appellants' father filed C
appeal against the rejection order and the same was allowed.
Aggrieved respondent filed cross-objection which was rejected.
Respondent then filed second appeal which was allowed. Hence the
present appeals.
      Appellant contended that having regard to the provisions of D
Order XLIII Rule 1(u) CPC the second appeal was not maintainable;
that the High Court erred in relying upon the orders passed by trial
court from time to time without taking into consideration the fact that
in view of s. 1OS CPC, such orders are open to challenge in an appeal
preferred against a final order; that the Commissioner appointed to E
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; and that the
Commissioner having ignored vital facts including non-production
of books of accounts and ledger, his report could not have been F
accepted.
     Respondent contended that the appeal filed by the respondent
being a composite one both against the order dismissing the cross-
objection as also the appeal filed by the appellants, a second appeal
was maintainable; that a distinction must be made between a G
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; and that in any view of the matter,
the preliminary decree having been passed as far back as 13th
                                                                      H
    922 SUPREME COURT REPORTS                  [2007] 13 (Addi.) S.C.R.


A October, 1978, the impugned judgment should not be interfered with.
         Dismissing the appeals, the Court
       HELD: 1.1. Order XXVI Rule 11 CPC provides for
  appointment of a Commissioner to examine or adjust accounts, if
B 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's 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
c 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. [Para 19) [929-C-E)
        1.2. 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
D 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 CPC, principally
  the books of accounts which were maintained by the firm were
  required to betaken into consideration. If any additional books of
E 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 which was rejected. It does not appear that
F any civil revision application was filed thereagainst. Therefore, the
  said order attained finality. A civil revision application was filed
  against one of the orders, which was later withdrawn. It is accepted
  at th1: Bar that the other civil revision application was also
  withdrawn. The High Court in its impugned judgment had taken the
  said facts into consideration.
G                              [Paras 15, 18 and 19) [928•C-E; 929-B-C)
       1.3. Appellants' father was entitled to raise all the contentions
  in regard to non-production of books of accounts and other matters.
  It was also permissible for him to examine witnesses in support of         "'
H his case before the Commissioner. Before the Court, objections to
       SONI DINESHBHAI MANILAL v. JAGJIV AN MULCHAND 923
                         CHOKSHI
...   the report of the Commissioner had been taken. Several orders were A
      passed. There is nothing on record to show that the appellant
      intend.ed to adduce any evidence in support of his case. In fact, he
      was permitted to do so. [Paras 21 and 22] [930-A-B-E]

           2.1. It may be true that any order passed can be questioned in
                                                                             B
      the grounds taken in the appeal against the final orders, but such
      interlocutory orders are required to be challenged. Nothing has been
      shown that such interlocutory orders and particularly those which
      are referred to 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
                                                                             c
      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 CPC also would not apply in such cases.
      Each of those orders attained finality. [Para 21] [930-B-D]
                                                                             D
           Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat,
      AIR (1970) SC 1, referred to.

           2.2. It may be true that in view of Rule l(u) of Order XLIII 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 E
      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.
,..                                                    [Para 23) [930-F-G] F
            2.3. In a given case the appellate court in exercise ofits inherent
      jurisdiction can convert one type of appeal to the other. Forum for
      preferring a second appeal as also an appeal under Order XLIII
      Rule l(u) is the same, namely the High Court. As the scope of an G
      appeal under Order XLIII Rule l(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. [Para 24) [930-H; 931-A)
           2.4. Even substantial questions oflawwere framed and the same H
    924 SUPREME COURT REPORTS                  [2007] 13 (Addi.) S.C.R.


A have been answered. However, although it is agreed that technically
  a second appeal was not maintainable from one part of the judgment,
  keeping in view 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, it is not a fit case where discretionary jurisdiction
B under Article 136 of the Constitution should be exercised. It is now
  well settled that this Court may decline to exercise its jurisdiction,
  although it would be lawful to do so. [Para 25] [931-B-C]
        Management, Pandiyan Roadways Corporation Ltd. v. N.
    Balakrishnan, (2007) 7 SCALE 758, relied on.
c
        CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5945 of
    2007.
      From the Final Judgment and Order dated 06.04.2005 of the High
  Court of Gujarat at Ahmedabad in Second Appeal Petition No. 37 of
D 1998.
        Pravin Satale, Naresh Kumar, Meenakshi and D. Singh for the
    Appearing parties.
         The Judgment of the Court was delivered by
E
         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
F No.37of1998.
       3. For the purpose of determining the question involved in these
  appeals, Soni Dineshbhai Manila) and others are being referred to as the
  appellants, while Jagjivan Mulchand Chokshi is being referred to as the
G respondent.
         4. 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
H
    SONI DINESHBHAI MANILAL v. JAGJIV AN MULCHAND 925
                 CHOKSHI [SINHA, J.]
    partnership finn and accounts was filed by the respondent herein, inter A
    alia on the premise of the existing dispute in regard to shares of the parties
    in the said partnership finn.
          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 B
    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 C
    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 D
    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 Ari!, 1996, stating
                                                                                E
           "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 F
           entitled to prove or disprove the accounts that may be submitted
           by the parties with regard to the partnership finn."
          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.                            G
         8. By an order dated 2nd May, 1997 the trial court rejected the
    objections of the appellants opining:-
           "Taking into consideration, the submissions, repJies and evidences
           of both the sides, Civil Court had rejected the said suit and against H
    926 SUPREME COURT REPORTS                       [2007] 13 (Addi.) S.C.R.


A          the said order, Appeal No. 79of1975 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'ble High Court and in the
B          Hon'ble 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 oflegal question, but both he parties were given proper
           time and reasonable opportunity, even though, their rights were
c          closed as there was no submissions.
               In the said case, Commissioner's 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
D          taking into consideration for evidence. In the said case, the record
           and Commissioner's report which were produced before me, being
           taken into consideration and if determined as per law, the
           Commissioner's report and the finding which were given by taking
           into account the fact, are found reasonable and when said report
E
           was given by the defendant by violating the provisions of existing
           law, have been failed to prove the same, in that circumstances, it
           is fotind 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."
F
         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:-
G
           '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. "
H
         SONI DINESHBHAI MANILAL v. JAGJIV AN MULCHAND 927
                      CHOKSHI [SINHA, J.]

-             10. Respondent filed a second appeal thereagainst which has been A
         allow~d by reason of the impugned judgment.

              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- B
                   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   c
                    of the Code of Civil Procedure, such orders are open to
                    challenge in an appeal preferred against a final order ;
               (lii) 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 D
                     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.                                      E
               12. Ms. Meenakshi Arora, learned counsel appearing on behalf of
         the respondent, on the other hand, contended :
               (l) The appeal preferred by the respondent being a composite one
                   both against the order dismissing the cross-objection as also F
                   the appeal preferred by the appellants, a second appeal was
                   maintainable.
               (n) 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 G
                   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.                                                 H
    928 SUPREME COURT REPORTS                      [2007] 13 (Addi.) S.C.R.


A          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
B 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
c 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 docum1~nt 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
D 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
E stock books. An objection was filed to that effect on Ist 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
F 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 n:covery of decretal amount". Another objection filed by the
  respondent was rejected by a very detailed order dated 31st January,
G 1996 not only taking into consideration the provisions oflaw 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
H
    SONIDINESHBHAIMANILAL v. JAGJIVANMULCHAND 929
                CHOKSHI [SINHA, J.]
    objection was raised at the time of the appointment of the Commissioner. A
          17. 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 ~Zia on the basis of the purchase bills
    and the sales bills.                                                       B
         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 C

-   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's report can be set aside only upon D
    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
    ~~                                                                          E
         20. 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 F
           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 G
              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 ;
                                                                                H
     930 SUPREME COURT REPORTS                    [2007] 13 (Addl.) S.C.R.


A          (c) at any reasonable time enter upon or into any land or building
               mentioned in the order."
        21. 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
B 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
C 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
D not apply in such cases. Each of those orders attained finality.
         It has been held in Shankar Ramchandra Abhyankar v. Krishnaji
    Dattatreya Bapat, AIR (1970) SC 1, that civil revision is a part of
    appellate jurisdiction.
E        22. As 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.

F       23. It may be true that in view of Rule l(u) of Order XLIII 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
G 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. Foruin for
    preferring a second appeal as also an appeal under Order XVIII Rule
H
SONI DINESHBHAI MANILAL v. JAGJIV AN MULCHAND 931
             CHOKSHI [SINHA, J.]
 l(u) is the same, namely the High Court. As the scope of an appeal under A
 Order XVIII Rule l(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 oflaw were framed and the same have B
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 C
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. v. N Balakrishnan, (2007) 7 SCALE
75~.                                                                             D
     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.
N.J.                                                   Appeals dismissed.      E