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C. Kanni Chetti Vs. Kotah Raju Chetty and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1926Mad879; 95Ind.Cas.436
AppellantC. Kanni Chetti
RespondentKotah Raju Chetty and anr.
Excerpt:
- .....for accounts against the defendant who was his commission agent. that suit was referred by the learned judge before whom it came on for hearing to the official referee to take accounts without deciding any question, raised in it. the case was heard at considerable length before the official referee ; when it was pending before the official referee, the plaintiff made an attempt to have certain questions raised for determination by the official referee brought into court and decided by court, but his application did not succeed. the official referee made his report in due course after taking all the evidence available and tendered. the plaintiff filed no objections to the report in time. he asked the learned judge sitting on the original side to grant further time to file his.....
Judgment:

Krishnan, J.

1. This is an appeal from a decree on the Original Side whereby the plaintiff's suit was dismissed and a decree was given against him in favour of the defendant for a certain sum of money. The plaintiff, has brought this appeal. To understand the plaintiff's complaint, it is necessary to mention the facts. He brought the suit as a suit for accounts against the defendant who was his commission agent. That suit was referred by the learned Judge before whom it came on for hearing to the Official Referee to take accounts without deciding any question, raised in it. The case was heard at considerable length before the Official Referee ; when it was pending before the Official Referee, the plaintiff made an attempt to have certain questions raised for determination by the Official Referee brought into Court and decided by Court, but his application did not succeed. The Official Referee made his report in due course after taking all the evidence available and tendered. The plaintiff filed no objections to the report in time. He asked the learned Judge sitting on the Original Side to grant further time to file his objections. But the learned Judge in his discretion refused that application. The result of it was that the report of the Official Referee was unchallenged by the plaintiff and the learned Judge passed a decree which is now under appeal before us.

2. The point taken by the appellant (plaintiff) is that the Court had no jurisdiction to refer the whole of his suit to the Official Referee, but should have decided certain questions arising in the case itself. The Official Referee has set out the points for determination in his report. They are five in number and marked as A to E in the report. It is conceded that D relating to taking accounts was properly before the Official Referee, but it is argued that points A, B and C should not have been referred to the Official Referee. Points A and B are as follows:

(a) An enquiry as to whether 250 cases of cutch consigned by the plaintiff to the 1st defendant contain cutch of the quality mentioned in the plaint viz., Mimbu quality;

(b) An enquiry as to whether the said cases delivered to the 1st defendant contained or bore the marks referred to in the plaint.

3. The dispute was as regards 250 cases of cutch which the plaintiff had sent to the defendant. The defendant did not dispute his having received the cutch nor his liability to account for the cutch. His case was that he could not sell them and that the goods were still available to be returned to the plaintiff subject to the lien which he had for money advanced on such cutch to the plaintiff, The plaintiff then tried to make out that the cutch which the 1st defendant was willing to return was not the same cutch that he had sent but some substitute of a lower quality. This matter was enquired into by the Official Referee and found against the plaintiff. It is con- tended that this is not a question which could have properly been referred to the Official Referee.

4. I am inclined to think that this argument is not valid ; for after all the suit in itself is one for accounts and this is one of the points for determination in the Suit. Just as, when a point arises in a pure case of accounts whether a particular entry in an account-book is a false entry or not, the Official Referee has to decide the question and to frame his report afterwards on the finding he comes to on such an issue, similarly in the present case he had to find if the 250 cases of cutch which the defendant was willing to return was the same cutch that he had received from the plaintiff and also whether the defendant failed in his duty as commission agent in not settling them for the plaintiff. I think that these are matters which are connected with the taking of accounts and it cannot be said that the Court had no jurisdiction to send these questions to be reported upon by the Official Referee.

5. The other point raised by the appellant has reference to the enquiry whether certain goods and title-deeds which he had entrusted with the defendant were so entrusted for safe custody or given to the defendant as security for re-payment of the amount due to him. The defendant's case was that they were given to him as security whereas the plaintiff's case was that they were merely entrusted for safe custody. Here again, the plaintiff was asking the defendant to account for these jewels and title-deeds. It is quite open to the Court to ask the Official Referee to take evidence and report whether the jewels and title-deeds we given for safe custody or as security for re-payment of the dues. Here again, I am of opinion that the matter is not very distinct from the general accounts ordered to be taken that one could say that the Court had no jurisdiction to ask the Official Referee to report about it. After all, it must be remembered that, when the Official Referee's report is submitted, it is the Court that goes finally into the question and decides the rights of parties. In this very case; if the objections which the plaintiff now says he has to the report, were filed in Court in time there can be no doubt whatever that the Court would have determined the points after hearing the arguments and if necessary taking further evidence that may be tendered. That opportunity was missed because the plaintiff did not file his objections and the Court had, therefore, to include that there were really no objections to the report and that it was correct.'

6. It is also argued before us that the learned Judge should have given further time to file objections, but I am not prepared on the facts of this case to interfere with the discretion exercised by the learned Judge in the conduct of proceedings. Nothing has been said before us which would justify interference with the learned Judge's discretion with regard to refusing further time. There was nothing preventing the plaintiff from filing his objections in time as he knew what the Official Referee's report was. He applied for a copy and obtained it. If he did not get it in time it would have been proper for him to have asked for time by Registrar's or Judge's summons. He did nothing of the sort. I, therefore, dismiss the appeal with costs.

Venkatasubba Rao, J.

7. On the very important question whether the objection taken to jurisdiction is such as would go to the nullity of the decree, I wish to express no opinion. The appellant has shown very little diligence and has been wasting his time and the time of the Court. His conduct is such that he is entitled to no indulgence. I agree in the order proposed by my learned brother dismissing the appeal with costs.


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