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Jagan Nath Vs. Smt. Kamla Bai and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberD.B. Civil Regular First Appeal No. 7 of 1969
Judge
Reported in1980WLN178
AppellantJagan Nath
RespondentSmt. Kamla Bai and ors.
DispositionAppeal allowed
Cases ReferredGirish Chander Lohiri v. Shoshi Shikharewer Roy
Excerpt:
.....including the documents produced before him, shall also constitute evidence in the case as the learned district judge has not taken into consideration some of the objections raised by the defendant appellant, merely on the ground that those objections were not raised before the commissioner and has further failed to take into consideration the evidence led by the parties in the proceedings for final decree we are constrained to observe that the order passed by the learned district judge is vitiated.;appeal allowed - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16..........by both the parties and on the basis of such objections as many as eight issues were framed by the learned district judge or july 14, 1964. after the issues were framed in the suit, both the parties led evidence. later, the learned district judge passed a final decree on september 24, 1968 in the sum of rs. 59,351.90 p. in favour of the plaintiffs & against the defendants, subject to the condition that the plaintiffs would be entitled to obtain satisfaction of the decree from the assests of deceased rood mal which, were passed on to the hands of the defendants the defendants were also made liable for the payment of costs and the pendente lie and future interest. it is against this final decree passed by the learned district judge than the present first appeal has been filed in this.....
Judgment:

D.P. Gupta, J.

1. In a suit for declaration of dissolution of partnership and for taking of accounts filed by Kundanmal on January 6, 1955, a preliminary decree was passed by the learned District Judge, 'jaipur District on June 6, 1956. In the aforesaid preliminary decree, the share of the plaintiffs, Kundan-mal and Ors., in the assests and liabilities of the partnership firm Gaurilal Bhonrilal was declared to be 9 annas in a rupee, while the share of the defendants, Roodmal and Ors., was found to be 7 annas in a rupee. It was also held that the aforesaid firm stood dissolved with effect from Kartik vadl 15, Samvat, 2010 We may also mention here that an appeal preferred by the defendants against the preliminary decree was dismissed by this Court on August 10, 1962.

2. Thereafter, a Commissioner was appointed to go into the accounts of the dissolved firm. The Commissioner submitted his report on April 17, 1964. Objections to the report were submitted by both the parties and on the basis of such objections as many as eight issues were framed by the learned District Judge or July 14, 1964. After the issues were framed in the suit, both the parties led evidence. Later, the learned District Judge passed a final decree on September 24, 1968 in the sum of Rs. 59,351.90 p. in favour of the plaintiffs & against the defendants, subject to the condition that the plaintiffs would be entitled to obtain satisfaction of the decree from the assests of deceased Rood Mal which, were passed on to the hands of the defendants The defendants were also made liable for the payment of costs and the pendente lie and future interest. It is against this final decree passed by the learned District Judge than the present first appeal has been filed in this Court.

3. The first submission, which has been made by the learned Counsel for the appellant before us is that the learned District Judge failed to take into consideration the objections raised by the defendants against the Commissioner report in the proceedings for final decree on the ground that those objections were not raised by the parties before the Commissioner. It was also argued by the learned Counsel for the defendant appellant that the learned District Judge also failed to take into consideration the evidence which was led before him on the various issues framed in the poceeding for final decree. The contention of the learned Counsel thus is that the procedure adopted by the learned District Judge, in igonring the objections preferred by the defendant appellant after the receipt of the Commissioner's report and in failing to take into consideration the evidence led by the parties in the proceedings for final decree, was absolutely illegal and the judgement and decree passed by the learned District Judge was vitiated on this ground alone. On the other hand, Mr. Dilipsingh, appearing for the plaintiff-respondents, argued that the defendant, having failed to raise specific objections before the Commissioner, could not be allowed to raise those objections before the trial court after the receipt of the Commissioner's report, as it would lead to duplicity of proceedings and further that the defendant was estopped from raising such objections at the subsequent stage. Learned Counsel for the plaintiff-respondents argued that the learned District Judge was right in Ignoring the evidence, which was led before the trial court in the proceedings for final decree, because the parties had already led evidence before the Commissiorer in respect of such matters, relating to which objections were raised by the defendants before the Commissioner and that a second opportunity of leading evidence in respect of these, very matters should not have been afforded to the defendants by the learned District Judge.

4. It is not in dispute between the parties that after the Commissioner was appointed for taking of accounts, the parties led evidence before the Commissioner and account books of the firm were produced by the plaintiff-repondents before the Commissioner and the defendants had raised certain objections in respect of the entries made in such account-books and in respect of some other matters It was also not In dispute that evidence was led by both the parties before the Commissioner and thereafter the Commissioner submitted his report, as already mentioned above, on April 17, 1964. After the receipt of the Commissioner's repot, both parties were allowed to me objections by the trial court to that report. The while the defendant filed the objection on May 7, 1964 plaintiff filed his objections on May 2, 1964 and he also filed further and better particulars on July 13, 1964. On the basis of the objections raised by both the parties, issues were framed by the trial court on July 14, 1964 and then both the parties were afforded an opportunity to lead evidence in respect of the matters relating to which issues were framed. It may be noted here that no objection was raised to the adoption of this procedure by any of the parties, either at the time of framing of the issues or as the time when evidence of both the parties was recorded by the trial court in the proceeding for final decree. If was only at the argument stage that the learned District Judge exoressed his opinion that when a court appointed a Commissioner for the specific purpose of going into the accounts, it was the duty of the parties to raise as many objections as they might think proper before the Commissioner and if any such objection was not raised before him, the same could not be allowed to be raised before the Court at a later stage. Learned District Judge also expressed the view that the parties cannot be allowed to lead evidence on the same points before, the trial court, in respect of which they have already led evidence before the Commissioner. Having laid down these two general propositions, the learned District Judge proceeded to decide the issue and we have found that the objections, which were raised by the defendant appellant in the court, after the receipt of the Commissioner's report and also the evidence led by the parties before the learned District Judge, in respect of all the issues was ignorred by him So far as issues Nos 2 4 and 6 are concerned, it was held by the learned District Judge that no objection in respect of the matter covered by chose issues were raised by the defendants before the Commissioner and as such the issues did not call for any decision and the evidence which was led by the parties before him in respect of those issues was not at all taken into consideration, but the aforesaid three issues were held to be decided against the defendants, merely on the ground that objections in respect of such matters were not taken before the Commissioner without giving any decision on those issues.

5. As regards the proposition laid down by the learned District Judge that the parties cannot be allowed to raise fresh objections before the trial court after the receipt of the report of the Commissioner, in respect of matter relating to which objectiors were not raised before the Commissioner, we may observe that there is no legal basis for the aforesaid proposition. Rule 11 of Order 26 of the Code of Civil Procedure authorises the court in any suit, in which an examination or adjustment of accounts is necessary, to issue a commission to such person as it may (thikSIC) fit, directing him to meke such examination or adjustment of accounts. Sub-rule (2) of Rule 12 of Order 26 CPC lays down that the report of the Commissioner and the evidence taken by him shall form part of the record of the suit and the Commissioner may be examined in the suit as a witness by either party or by the court, it respect of any matter referred to him and mentioned in his report Then Rule 16 of Order 26 CPC provides that any Commissioner, appointed under that order, may examine the parties themselves and any witness whom they or any of then may produce and any other person whom the Commissioner may think proper to call upon to give evidence in the matter and call for and examine documents and other material relevant to the subject-matter of enquiry, subject to such directions as may be given in the order of his appointment. In the present case, the Commissioner was appointed in pursuance of the power vested in the learned District Judge under Order 26 Rule 11 CPC. The Commissioner was appointed by him to take and examine the accounts of the dissolved firm and submit a report in respect thereof to the Court. Under Rule 16 of Order 26 CPC the Commissioner was empowered to examine witnesses, which the parties might have produced before him in connection with taking of accounts and he was also empowered to examine the documents including the aecount-books, which might have been produced by the parties before him. The Commissioner was thereafter required to sub-mis his report to the court, after taking into consideration the documents produced before him by the parties and the deposition of the witnesses examined by the parties before him. No doubt under Sub-rule (2) of Rule 12 of Order 26 CPC, the evidence received and recorded by the Commissioner, as also the report submitted by him, shall form part of the record of the suit and shall be evidence in the suit. But there is no provision in any of the rules contained in Order 26 CPC nor there is any other provision in the Code of Civil Procedure, debarring the parties from raising objections before the court, after the receipt of the Commissioner's report. We are unable to hold that once some objections have been raised by a party before the Commissioner, that party or the other party is precluded from raising further objections before the court after the receipt of the Commissioner's report and in relation to the matters dealth with in such report should be borne in mind that ultimately it is the court which is to decide the matter and the Commissioner acts merely to assist the court in arriving at a proper decision. In such matters, where accounts are to be taken or a partition of the property has to be made, the report of the Commissioner is after all his opinion in respect of the material produced before him and the same would necessarily constitute an important piece of evidence in the case. But the Commissioner is not empowered to decide the right of the parties or to dispose of the dispute between them. Thus, after the Commissioner's report Is received by the court, both the parties are at liberty to tee file such objections as they may consider proper In respect of subject-matter of the report. They are also entitled to examine the Commissioner as a witness or to examine such other witnesses as they may consider necessary or proper, provided the evidence so adduced is relevant to the subject-matter of dispute between the parties.

6. In Hans Raj Walaiti Ram v. Nathu Mal and Ors. AIR 1928 Lahore 762, Shadilal, C.J. as he then was, obsevered as under in this context:

It is true that, as laid done by Order 26 Rule 10 AIR 1934 Patna 35 Civil P.C. the proceedings and the report of the Commissioner appointed to examine accounts are evidence in the suit, but it is no where laid down and indeed it would be obviously absurd to suggest, that a party dissatisfied with the report is precluded from adducing evidence in support of his contention. Nor is there any foundation for the view adopted by the learned District Judge that the Court should accept the report of the comissioner at its face valud and should refrain from adjudicating upon the objections raised by the parties. It was clearly the duty of the court to afford the plaintiffs a resonable opportunity to produce evidence in support of their objections & then come to an independent finding upon by the lower courts & the learned District Judge has simply endorsed the report of the Commissioner without adjudicating upon the merits of the objections.

7. A similar view was taken by a Bench of the Patna High Court in Dargahon Btbi v. Jyoti Prasad Singh Deo AIR 1934 Patna 35 and it was observed in that case as under:

It was a remand order, to the subordinate Judge to determine certain questions and for his assistence in the determination of those questions as. I have held he had jurisdiction to appoint a Commissioner. But that does not excuse him from coming to a conclusion on these, matters himself It was necessary for him to investigate the Commissioner's report. Incidentally I might say that they were entitled to put forward objections and be heard on them, and then, after considering these matters and examining the Commissioner, if he thinks it necessary, come to a conclusion, an independent conclusion, on the matters referred to him.

In joyti Prasad and Anr. v. Hardwari Mal and Anr. AIR 1932 All 128 a Commissioner was appointed to 'examine the accounts & to report, what sum of money if any was due from the defendants to the plaintiffs in a suit for rendition of accounts of dissolved partnership After the receipt of the Commissioner's report the defendants asked for permission to prove certain allegations in the trial court, but their application was refused. It was held in that, case by a Bench of Patna High Court that there is nothing in Order 26 of the Code which prevents a court from accepting evidence on a debatable point between the parties, where a Commissioner has been appointed to examine and submit a report on the accounts. I earned counsel for the respondents drew our attention to a decision of the Judicial Committee of the Privy Council in Girish Chander Lohiri v. Shoshi Shikharewer Roy 27 Indian Appeals 1(sic)0. That was a case relating to the appointment of a Commissioner for making local investigation & it was observed by their Lordships of the Privy Council in that case that where a Commissioner is pointed to make local investigation, there is no provision to tender, further evidence after the Commissioner's report except the examination of the Commissioner's report but they do not forbid it' According to the view of their Lordships, the provisions of the Code are consistent with other course and the question has to be decided on general priciples, according to the facts of each case. It was therefore, beld in the aforesaid, case that if the court considers it necessary then further evidence could be examined, but it all depends upon the nature of the evidence desired to be submitted by the parties. We may observe that the, matter relating to local, investigation is different from, one relating to taking of accounts.

8. Thus, from the foregoing discussion, it is apparent that it is necessary for the court to investigate the matter, after receiving the Commissioner's report and to consider the objections of the parties to that report and to give an independent finding. The report of the Commissioner, no doubt constituts evidence in the case, but the court is not precluded from taking evidence of both the parties in respect of the objection raised before it There is there-fore, no basis for the proposition that the court is bound to accept the Commissioner's report on its face value or that, it should refrain from considering objections raised before it by the parties after the receipt of the Commissioner's report, in matter of taking of accounts. As we have already observed above, in the present case, the objections were invited by the trial court from both the parties after the receipt of the Commissioner's report and as a matter of fact objections were filed by the parties Thereafter, issues were framed and evidence of both the parties was recorded and no objection was raised by any of the parties either at the time of framing of the issues or when evidence was led by the plaintiff respondent to the procedure adopted by the trial court. After the issues were framed & evidence was recorded, the trial court was not justified in refusing to consider the same while deciding the issues, more particularly when there was no objection from either party in recording the evidence in respect of those objections As a matter of fact the plaintiff respondent himself led evidence, by way of the evidence led by the defendant-appellant, In respect of the objection raised in the proceedings for final decree. We are therefore, unable to agree with the learned District Judge in respect of both the propositions laid down by him and we hold that after the receipt of the Commissioner's report both the parties were entitled to raise objections and such objections deserved to be considered by the coup on merits notwithstanding the fact that such objections or some of them were not reised by the party before the Commissioner We also hold that the provisions contained in the Code of Civil Procedure relating to appointment of a Commissioner for examination and adjustment of accounts, do not preclude the parties from adducing evidence in respect of such objections as they might prefer to make after the receipt of the Commissioner's report and the court is bound to consider such evideme and to arrive at an independent finding of its own, on the basis of the evidence which is led before it and other materials it and other materials on the record. It may be observed In this connection that the report of the Commissioner and the evidence, including the documents produced before him, shall also constitute evidence in the case. As the learned District Judge has not taken into cosideration some of the objections raised by the defendant appellant, merely on the ground that those objections were not raised befor the Commissioner and has further failed to take into consideration the evidence led by the parties in the proeceedings for final decree, we are constrained to observe that the order passed by the learned District Judge is vitiated.

9. We, therefore, allow the appeal and set asise the order passed by the learned District Judge and the final decree passed by him and remand the case to the learned District Judge, Jaipur District with the direction that he should consider the entire material on record Including the evidence led before that court and pass a fresh judgment and decree, after bearing the argument of the parties. It may be pointed out that both the parties have already led evidence before the learned District Judge and they do not desire to produce any further evidence in the case. As such none of the parties would have right to produce further evidence before the learned District Judge, who should only hear the arguments and pass a fresh order and final decree, within a period of four months. The parties are, directed to appear before the learned District Judge, Jaipur District on March 11, 1980, The record of the trial court should be sent back to that court immediately. In the circumstances of the case, the parties are left to bear their own casts of this appeal.


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