1. The plaintiff-appellant had entered into a partnership with the deceased Purshottam Umedbhai and respondent No. 2 Desat Govindbhai Chhotalal, for the purpose Of carrying out certain works in respect of which a contract was taken by the partnership. The partnership was to carry on its business in the name and style of Govindbhai Apabhai and company (contract). The firm came into existence on 6-11-1958. For sometime the plaintiff attended to the work of the partnership aid, thereafter, other two partners carried out the remaining work. As a dispute arose between the partners, the plaintiff filed a suit being civil suit No. 1138 of 1961 in the court of the Civil judge, Senior Division, Ahmedabad, for dissolution of partnership and accounts. On the establishment 4of the City Civil Court at Ahmedabad, the above suit was transferred to the file and it was renumbered as wait No. 2635 of 11961. As stated in par& 4 of the plaint, the firm had taken a contract of construction of three works. The defendants had an filed a. suit for dissolution of partnership and Accounts in the court of the Civil judge, junior Division at Anand. In view of the suit filed by the plaintiff, the aforesaid suit was withdrawn. In the suit which has given rise to this appeal, a preliminary decree was passed on 4-3-1966 with the consent of the parties. According to the consent terms the affairs of the firm were managed by the plaintiff up to 7-7-1960 whereas, the defendants were in charge of the management of the firm from 7-7-1960 onwards. According to the above decree, the firm was deemed to have been dissolved with effect from 1-2-9-1961. Accounts wet e to be taken from the plaintiff for the period from 6-11-1958 to 7-7-1960; whereas, accounts for the period from 7-7-1960 to 12-9-1961 were to be taken from the defendants who were managing the affairs of the firm during the above period. The matter was referred to the Commissioner for taking Accounts, hereinafter referred to as the Commissioner. The parties filed their statements before the Commissioner, who, after framing certain issues, recorded evidence and submitted his report to the court. After the report was received, the parties were heard and the learned Principal judge, City Civil Court Passed a final decree on 17-2-1968. According to the above decree, the plaintiff had to pay Rs. 29,440-12 with interest at the rate of 4% per annum from the date of the decree till payment and also the costs of the suit, to the defendants. Being aggrieved by the said judgment and decree of the learned Principal judge, City Civil Court, Ahmedabad, the plaintiff has come in appeal to this court. The defendants have also filed cross objections as they thought that the decree for a larger amount should have been passed in their favor.
2. It appears that, after the parties had filed their statements before the Commissioner, the plaintiff did not remain present as a result of which, the proceedings were held ex parte against him. After the Commissioner filed his report, it was duly notified by the Registrar of the City Civil Court as contemplated by rule 343 of the Ahmedabad City Civil Court Rules, hereinafter referred to as the Rules. According to rule 344 of the rules-
'Any party desiring such report to be discharged or varied shall, within 20 days from the notification of the filing thereof in the Registrar's office as prescribed in the preceding rule, file his exceptions thereof, and serve a copy of the same on the other parties to the suit or proceedings. ...'
The plaintiff, however, did not file any exceptions within the stipulated the. He, therefore, took out a chamber summons to condone the delay in filing the exceptions to the Commissioners report. The application for condoning delay was rejected by the learned Principal judge on 2-12-1967. It is argued by the learned Advocate for the appellant that the learned Principal judge was not justified in rejecting the plaintiff's aforesaid application. According to the proviso to rule 344,
'the court or a judge may for sufficient cause allow such exceptions to be filed and served within such time after the expiry of twenty days as may appear to be just.'
The learned trial judge has pointed out in his order that the plaintiff was grossly negligent not only in not remaining present before the Commissioner but, also in not filing the exceptions within the period of 20 days as contemplated by rule 344 of the Rules.
3. it is found from the record and proceedings of the case that, the plaintiff had appeared before the Commissioner and taken part in the proceedings up to 30-4-1967. On 1-51-1967, the proceedings were adjourned as the learned Advocate for the plaintiff had filed his sick note. The matter was adjourned to 4-5-1967 on which date, the plaintiff's advocate applied for time on the ground that, the plaintiff had to leave Ahmedabad all of a sudden. While granting time, the Commissioner made the following observations in his order :-
'This application is an excuse for delaying the proceeding. Throughout, this proceeding, it has been the conduct of the plaintiff to delay the proceedings. However, as the other side has no objection, I grant one more opportunity to the plaintiff and adjourn the matter to 8-5-1967. Costs on applicant'.
On 8-5-67 also, the plaintiffs advocate applied for time on the ground that, the plaintiff had gone to stay at a different place and he was not aware of his address, as a result of which, he could not inform the plaintiff about the date of bearing. The application was allowed and the matter was adjourned to 19-5-67 on which date, the plaintiffs advocate filed a sick note. The matter was therefore, ad joined to 20-6-1967 on which date, the learned Advocate for the plaintiff applied for time on the ground that even though he had informed the plaintiff by a letter posted under certificate of posting, he could not attend the court due to some reason or the other. According to the certificate of posting, the letter was sent to the plaintiffs address at Karamsad. The above application was rejected by the Commissioner. The plaintiffs advocate reported no instructions' and sought permission to withdraw from the proceedings. The Commissioner, however ' directed that, the advocate should obtain an order of discharge from the Court. He, however, did not obtain any such order from the Court. Now, according to Rule 444 of the rules,
'An Advocate on the record of a suit or matter shall continue to represent his client until an order of discharge is obtained and filed in court or until the final conclusion of such suit or matter. - . .
In the present case, as observed above learned Advocate for the plaintiff-appellant did not obtain any order of discharge from the court, and hence, it should be held that, he continued to represent the plaintiff in the proceedings before the Commissioner, in spite of the aforesaid application given by him to the Commissioner to permit him to retire from the proceedings.
4. As the learned Advocate for the plaintiff did not appear before the Commissioner, the matter proceeded ex parte against the plaintiff. The proceedings before the Commissioner were held on 20-6-1967, 28-61967, 5-7-1967, 13-7-1967, 14-7-1967, 19-7-67 20-7-1967, 25-7-1967, 26-7-1967, 1-8-1967, 5-8-1967 and 11-8-1967. The Commissioner prepared his report on 22-9-1967. The report was notified on 28-9-1967. We have already pointed out that, the plaintiff did not file exceptions within 20 days as contemplated by Rule 344 of the rules. On 16-111967, the learned Advocate for the defendants applied for a certificate which was granted and the matter was fixed for hearing before the learned trial judge on 28-11-1967. On 27-11-1967, the plaintiff took out a chamber summons for moving two applications, according to one of which, the plaintiff endeavored to show that, it was because of sufficient cause that, he could not remain present before the Commissioner and take part in the proceedings. By other application, he requested the Court to condone the delay in filing the exceptions as pointed out by the learned trial judge, there was delay of 19 days. One of the reasons why the plaintiff could not appear before the Commissioner was, according to him, that he had changed the place of his residence and gone to stay at Karamsad. It was also alleged by him that, he was busy in settling his accounts with the Government in some other matter. The learned trial judge has given elaborate reasons in his order in support of his finding that, there was no substance in any of the allegations of the plaintiff and that he had failed to show that he was prevented by any sufficient reasons from appearing before the Commissioner. In this connection, we may point out that in order to challenge the order of the learned Principal judge rejecting his aforesaid application, the plaintiff had preferred revision application No. 50 of 1968 to this court, but it was rejected on 29-1-1968
5. The leaned Advocate for the appellant has not been able to show as to in what way, the aforesaid order of the learned trial judge is erroneous. We have gone through all the relevant records on the point and according to us, the plaintiff was grossly negligent in not appearing before the Commissioner and also in not filing exceptions within the stipulated time. As observed above, the plaintiff had appeared before the Commissioner on 30-4-1967. The plaintiff is a business-man. He must have known the seriousness of the proceedings in the court and before the Commissioner. It is, however, surprising to find that, even though, the matter was adjourned from time to time at the instance of the learned Advocate for the plaintiff, he did not remain present before the Commissioner Ex parte proceedings were held by the Commissioner on different dates from 20-6-1967 to 11-8-1967.If the plaintiff was desirous of taking part in the proceedings, he could have easily ascertained from the Court, the dates fixed for hearing before the Commissioner and appeared on the dates on which the matter was heard. It cannot be believed for a moment that, the plaintiff was not in a position to appear before the Commissioner. Moreover, in the present case, the plaintiff's advocate had not obtained any order of discharge from the court and, hence, he was bound to appear for the plaintiff at the proceedings before the Commissioner. Under these circumstances, it is riot open to the plaintiff to make any grievance that the proceedings were held before the Commissioner ex parte.
(His Lordship, after discussing the evidence in paragraph 6, found that there is no truth in the averment of the plaintiff that he came to know of the report only on 21-11-1967. His Lordship further held that the trial court's reliance on the affidavit of the second defendant that be saw the plaintiff in the City Civil Court, Ahmedabad on three of the relevant dates was justified. The judgment then proceeded:)
7. It is, further, argued by the learned Advocate for the appellant that the Commissioner was not justified in proceeding ex parte against the plaintiff. Now according to Rule 336 of the rules
'if any party concerned in such reference who shall have been duly served with notice of a meeting shall not attend the meeting of any adjournment thereof the Commissioner shall be at liberty to proceed ex parte as regards such party'.
In view of the above clear provisions of the rules, the above argument of the learned Advocate for the appellant cannot be accepted. Moreover in the present case, the plaintiff was represented by a lawyer. We have already pointed out that, his lawyer was 'not justified in not appearing before the Commissioner even though, he had not obtained any order of discharge from the learned trial judge. It is, therefore, difficult to understand as to how the plaintiff can make any grievance on the point.
8. Even though the plaintiffs application for condo nation of delay in filing the exceptions was rejected by the learned trial judge, he was given an opportunity to be heard and the suit came up for hearing on the basis of the report of the Commissioner. The observations of the learned trial judge on the point are-
'This, however, will not prevent the plaintiff from making his submissions on the Commissioner's report and the material as it stands on record, before the court considers what final order or decree it should pass in this case. Therefore, there will be liberty to the plaintiff to make the submissions on the commissioner's report on the materials as they stand on the record before the Commissioner'. It appears from the judgment of the learned trial judge that when the suit came up for hearing before him, it was contended by the learned Advocate for the respondent-defendants that, in view of rule 342 of the rules, the report of the Commissioner was binding on the parties and hence, the plaintiff could not be heard on the merits of the - case. Rule 342 provides-
'When any report of the Commissioner made in pursuance of any order of the court or judge in chambers shall have been signed by him, the same shall forthwith be transmitted to the Registrar and shall be binding on all the parties to the proceedings except so far as the same may thereafter be discharged or varied either in chambers or in court according to the nature of the case in manner as is hereinafter provided.'
It is not disputed that, in the present case, the report of the Commissioner has neither been discharged nor varied as contemplated by Rule 344 of the rules. In view of the fact that, the plaintiff had not filed any exceptions within the stipulated time for the purpose. While dealing with the contention as regards the binding nature of the report of the Commissioner, the learned trial judge has observed-
'It is the contention of the defendants that the exceptions not having been allowed, because they were beyond the period of 20 days, this report has now become binding on the partier. and, therefore, a decree should follow. it is not possible to accept this contention in such wider terms. The report, no doubt, would become binding upon the parties under Rule 342. But the question is, would that exclude the jurisdiction of the court to vary the report if the court finds mistakes made by the Commissioner in accounting which are apparent on the face of the record? There is no provision in the Rules that upon such report which is made binding between the parties, a decree shall follow. All that Rule 342 says is that the party cannot be heard to say that certain items held proved by the Commissioner may not be held proved or that certain evidence believed by the Commissioner should not be believed. But if there is a mistake or an error apparent on the face of the record, there is nothing in rule 342 which compels the court to ignore that mistake and do the more mechanical act of passing a final decree in terms of the report'.
9.. It is, however, argued by the learned Advocate for the appellant that, in view of the provisions of rules 11 and 12 of order 26 of the Code of Civil Procedure, Rule 342 of the Rules is ultra vires. Rule 11 of order 26 relates to the Commission to examine and adjust accounts. According to rule 12 (2)-
'The proceedings and report (if any) of the Commissioner shall be evidence in the suit, but where the court has reason to, be dissatisfied with them, it may direct such further inquiry as it shall think fit'.
According to the learned Advocate for the appellant, in view of the provisions of order 26, Rule 12 (2) of the code of civil Procedure, the report of the Commissioner can be treated only as evidence in the suit and it cannot be treated as binding to the parties and that, in view of the above provisions, rule 342 of the Rules cannot be said to be legal. While advancing the above argument, the learned Advocate seems to have lost sight of the provisions of Section 122 of the Code of Civil Procedure according to which,
High Courts not being the court of a judicial Commissioner may from time to time after previous publication, make rules regulating their own procedure and the procedure of the Civil Courts subject to the superintendence, and may by such rules annul, alter or add to, all or any of the rules in the first schedule'.
It becomes clear from above provisions of Section 122 of the Code of Civil Procedure that, it is open to the High Court to annul, alter or add to all or any of the ruler. in the first schedule of the Code of Civil Procedure and that is what has been done in the present case, as would be evident from the fact that, the City Civil Court Rules have been framed by the High Court in exercise of the powers under Article 227 of the Constitution of India and Section 122 of the Code of Civil Procedure, 1908. Under these circumstances the validity of rule 342 of the rules cannot be challenged on the basis of the aforesaid provisions of order 26, of the Code of Civil Procedure. If any authority is needed on the point, it is provided by the decision in the case of Sam M. Haeems v. Samson J. Benjamin (1965) 6 Gul LR 934.
10. The next contention of Mr. Chhatrapati, learned Advocate for the appellant is that, looking to the scope of order 26 the Commissioner was not justified in deciding certain issues. The Commissioner has framed the following issues on the basis of the statements filed by the parties:-
'(I) Whether the plaintiff proves that the motor truck No. BYD 7178 was not of the proprietorship of the suit partnership and the partnership is not liable for the expenses in respect of the motor truck? If not what amount is proved to have been spent in respect of the motor truck?
(2) Whether the plaintiff proves that the amount due to Automobiles is for petrol, oil, etc. purchased on behalf of the suit partnership and that the latter is liable for it?
(3) Whether the plaintiff proves that he has paid several amounts to (up to) 7th July 1960 for goods purchased for the partnership before 7th July 1960? If yes, what is the amount of such payments? Whether the plaintiff proves that the defendants had agreed that the plaintiff would be given credit for such payments? If not, is the partnership not liable for such payments?
(4) Whether the defendants prove that a sum of Rs. 36,606-35 P. is due to him from the partnership as stated in accounts produced by them at exhibit 24/11 to 18? if not, what amount is proved to be due to them?
(5) Whether the defendants prove that the firm had to incur loss by way of forfeiture of deposit of Rs. 3625/-, deduction of Rs. 4071/- for truck charges and deduction of Rs. 1000/- for default by the Government in respect of the works mentioned at paras 4 (b) and 4 (c) of the plaint on account of negligence on the part of the plaintiffs? If yes, is the plaintiff liable to be debited with the amount?
(6) Whether the defendants prove that there was a profit of Rs. 10,000/- in the work mentioned at para 4 (a) of the plaint? If not, what was the amount of profit or loss in that work?
(7) What amount is proved to have been paid and spent by the defendants in respect of suit by Ambika Brick Factory and C. S. Vora and Co., against the suit partnership? Are the defendants not entitled to the amount?
(8) What adjustment is required to be made in respect of the decree in Civil suit No. 318 of 1961 in the court of Second joint Civil judge, (J. D.) at Anand?
(9) What amount is found due from or to each of the parties on taking accounts?'
Relying on the decision in the case of Laxmibai v. Husainbhai Abmedbhai AIR 1916 Bom 181, it is argued by Mr. Chhatrapati that the Commissioner was not competent to decide issues Nos. 1, 2, 5 and 6. Now, there are specific provisions for taking accounts in the rules. It has been held by a division Bench of this Court in the case of Sam M. Haeems v. Samson (1965) 6 Guj LR 934 (supra) that. 'the Rules made in the Ahmedabad City Civil Court Rules are supplementary to the rules contained in the first schedule, except in the event of conflict in which event the Rules in the Ahmedabad City Civil Court Rules must prevail as against the rules in the first schedule. Rules for Commissioner for taking Accounts are contained in chapter XXV of the rules. According to Section 75 of the Civil Procedure Code,
'Subject to such conditions and limitations as may be prescribed. the Court may
issue a commission -
(a) to examine any person;
(b) to make a local investigation;
(c) to examine or adjust accounts; or
(d) to make a partition'.
Rule 12 (1) of order 26 of the Civil Procedure Code provides-
'The court shall furnish the Commissioner with such part of the proceedings and such instructions as appear necessary, and the instructions shall distinctly specify whether the Commissioner is merely to transmit the proceedings which he may hold on the inquiry, or also to report his own opinion on the point referred for his examination'.
It has not been specifically indicated in order 26 of the Code of Civil Procedure or any of the relevant provisions of the Rules on the point, as to what questions can be referred to or decided by the Commissioner for taking accounts. It is, however, established by the. decisions of some of the High Courts and the Privy Council that, questions of law or mixed questions of law and facts cannot be referred to the Commissioner. It is also well established that the court cannot delegate to the Commissioner its judicial powers or the trial of any material issue which it is itself bound to try. The provisions of sub-rule (1) of rule 12 of Order 26 of the Civil Procedure Code make it clear that, subject to the above restrictions and such instructions as are issued by the Court, the Commissioner can, depending on the nature of the transactions and the circumstances of the case, frame issues, record evidence and give his findings on those issues. It is needless to add that, the final decisions on those issues would be of the Court which may or may not accept the findings of the Commissioner.
11.. The decision in the case of Laxmibai AIR 1916 Bom 181 (supra) does not support the above argument of Mr. Chhatrapati, the learned Advocate for the appellant. In the above case, a decretal order of reference to the Commissioner was made to take accounts as detailed in the order. Defendants Nos. 6 and 7 objected to the Commissioner hearing certain objections raised by the other side. The Commissioner, however, expressed an opinion that, under the said reference, he had power to go into the questions even though, they involved questions of law or of mixed questions of law and fact. When defendant Nos. 6 and 7 moved the court for an order that direction should be given to the Commissioner that it was not open to him to determine the objections of the plaintiffs, the learned single judge of the High Court of Bombay observed-
'But unless the Commissioner makes a special report under one of these rules, in the ordinary course he proceeds with the reference and makes his final report in the matters referred to him. It cannot be seriously contended that the Commissioner is not entitled to decide questions of law which may arise while taking the accounts. It is impossible for the court while giving directions for the taking, for instance, of a mortgage account, to decide all questions of law, since many such questions do not arise until the accounts are filed, as in this case, where the mortgage in possession claims that he is entitled to be given credit for certain costs and expenses as properly incurred by him in maintaining the mortgaged property. It must often happen, as in this case, that the Commissioner cannot arrive at a conclusion without deciding questions of law'.
The above decision is based on the interpretation of the relevant provisions of the Bombay High Court Rules (original side) and hence, the ratio of that case that, even the questions of law can be decided by a Commissioner will not be applicable to a matter referred to a Commissioner under order 26 of the Civil Procedure Code or Rule 332 of the rules.
12. In the case of R. B. S. S. Munnalal v. S. S. Rajkuma : AIR1962SC1493 , the trial court appointed a Commissioner under the provisions of order 26, Rule 13 of the Civil Procedure Code, to propose partition of the joint family property, and for that purpose, the court authorized him to ascertain the property, debts which the family owed and also individual liability of the parties for the debts. For deciding the above questions, the Commissioner was empowered to record statements of the parties, frame issues and to record evidence as might be necessary. The order appointing the ' Commissioner was made with the consent of the parties. In the Supreme Court, it was contended that, the trial Court was in error in delegating to a Commissioner judicial functions such as ascertainment of property to be divided and effecting partition. While dealing with the above contention, the Supreme court observed-
'By so authorizing the Commissioner, the trial court did not abdicate its functions to the Commissioner; the Commissioner was merely called upon to make proposals for partition, on which the parties would be heard, and the court would adjudicate upon such proposals in the light of the decree, and the contentions of the parties. The proposals of the Commissioner cannot from their very nature be binding upon the parties nor the reasons in support thereof. The order, it may be remembered, was made with the consent of the parties and no objection to the order was, it appears, pressed before the High Court. We do not think that any case is made out for modifying that part of the order'.
It becomes evident from the above decision that the Commissioner can be authorized in certain circumstances to frame issues, record evidence and to submit proposals for partition, subject to the conditions mentioned in the judgment. Even in the Present case, the learned trial judge has considered the report of the Commissioner on the basis of the contentions raised by the parties and the evidence on record, and recorded his own findings on various issues framed by the Commissioner.
13. Mr. Chhatrapati has also referred to the decision of a single judge of this Court in Civil revision application No. 584 of 1965 decided on 6th December 1967. The Commissioner for taking accounts to whom the matter was referred by the City Court had framed 17 issues. Raju, J. held, in the above case, that the Commissioner was not competent to decide the said issues and that they should be decided by the court. It is easy to understand that, while taking accounts in a case like the present one, various questions as to the liability of one partner or the other in respect of certain transactions or amounts would arise. Unless such questions are dealt with and decided by the Commissioner, it would be difficult for him to take accounts in a satisfactory manner. We are, therefore, unable to accept the proposition that, the Commissioner cannot decide any controversial questions arising out of conflicting claims made by the parties. It appears that, in view of the peculiar nature of issues raised in the case decided by Raju, he has taken the view that, those issues should be decided only by the court. It is difficult to construe his judgment as laying down any general proposition of law that, no controversial questions can ever be decided by a Commissioner. Moreover, in view of the decision of the Supreme Court in the case of R. B. S. S. Murmalal : AIR1962SC1493 (supra), the decision of Raju, J. in the above case cannot be treated as an authority on the point. Each case is to be decided on its own merits, and looking to the facts of the case before us, we do not find that, the Commissioner has erred in deciding the issues framed by him.
14. In this connection, it should, further, be remembered that, the Commissioner has framed the issues on 7-4-1967 and, thereafter, the matter was adjourned from time to time and yet, at no time, any objection was raised on behalf of the plaintiff that, the Commissioner was not competent to frame or decide any of the issues. Even in the trial Court no contention was raised that, the Commissioner had no jurisdiction to frame and decide the aforesaid issues. Considerng all these circumstances, the contention of Mr. Chhatrapati to the contrary cannot be accepted.
15. As observed above, Mr. Chhatrapati has restricted his objections only to the decisions on issues Nos. 1, 2, 5 and 6. Looking to the facts of the case, we find that, for the purpose of taking accounts in a satisfactory manner, it was necessary for the Commissioner to record his findings on the aforesaid issues and it is difficult to say that the aforesaid issues were such as could be decided only by the Court. It should, further, be remembered that, merely because the Commissioner has recorded his findings on the issues, the court was not precluded from considering the correctness or otherwise of the findings of the Commissioner and as observed above, the learned trial judge has come to his own conclusion on the above issues, on the basis of the evidence on record and the arguments of the learned advocates for the parties. Considering all these circumstances, it is difficult to understand as to how, the plaintiff can make any grievance that, the Commissioner was not justified in recording his findings on the above issues.
x x x x x x x
16. Appeal and cross appeal dismissed.