1. This appeal arises out of a suit for accounts, brought by the plaintiffs against the defendant who worked as their Tahsildar. The Court of first instance dismissed the suit. The lower Appellate Court has reversed the decision and passed a preliminary decree for accounts for the period in suit, to be taken by a Commissioner to be appointed for the purpose. The defendant has thereupon preferred this appeal.
2. The appellant's contention substantially is to the effect that upon the finding of the Court of Appeal below, the plaintiff's suit should have been dismissed. It is also urged that in view of the finding that the defendant has submitted all the papers, which it was his duty to prepare and submit, the plaintiffs are not entitled to any decree in the absence of circumstances justifying the granting of liberty to the plaintiffs to surcharge and falsify. This last mentioned argument, however, is based upon a misconception, for it is not pretended that the accounts were ever settled between the parties in the present case. It is only in the case of settled accounts that liberty has to be obtained by a plaintiff to surcharge and falsify. A suit by a principal for accounts on the allegation that the defendant, his agent, has not rendered any account, has manifestly an entirely different scope from that of a suit in which a principal alleges that the defendant, his agent, has rendered accounts and prays to have them reopened or to have liberty to surcharge land falsity them, on the ground of fraud or material error. The distinction has been clearly pointed out in the case of Prasanna Kumar Mookerjee v. Burn and Co.  13 C.L.J. 165.
3. As regards the main contention of the appellant, the matter stands thus. The plaintiffs' case was that the defendant worked as their Tahsildar up to Poush 1326 B.S., and had rendered accounts up to 1323 B.S., that although he submitted certain papers relating to the period from 1324 to the date of his dismissal, these papers were not explained by him and that certain other papers which he should have prepared were not submitted by him, and they claimed the papers mentioned in schedule kha to the plaint as being due from the defendant. The plaintiff:; also alleged that two boats which were in the defendant's charge had not been returned by him, for which they claimed the value along with other sums for which the defendant might be found liable on. examination of the accounts. The defence was that the accounts had already been rendered up to the year 1325 B.S., that the defendant had been dismissed before the close of the year 1326 B.S., and so he could not be liable for the Nikashi papers for that year, but that he had nevertheless submitted all the papers for the said year that he was in the ordinary course required to prepare. The learned Subordinate Judge has distinctly found in his judgment that the defendant has submitted all the papers that it was his duty to prepare and submit, and that the plaintiffs therefore were not entitled to a decree for the papers mentioned in schedule kha to the plaint. The learned Subordinate Judge has held, however, that mere submission of papers did not absolve the defendant from liability but that he is bound to explain them which he never did. He, therefore, made a decree which runs in these words :-' There be a preliminary decree for accounts for the period in suit and a Commissioner be appointed by the trial Court for examination of the account papers submitted by the defendant; but not explained by him. The defendant shall explain the papers to the Commissioner, who will, after examining the same, ascertain what sums, if any, are payable by the defendant to the plaintiff or vice versa. The lower Court will consider the plaintiff's claim to the two boats referred to in the judgment.'
4. The appellant challenges the propriety of the decree on the ground that as the defendant has submitted all the papers, there is no further liability of the defendant to account and it is disputed on his behalf that there is a liability on him to explain the accounts submitted by him. In support of this contention reliance is placed upon the decisions of this Court in the case of Upendra Kishore v. Ramtara Debya  13 C.W.N. 696 and Devendra Narain Singh v. Narendra Narain Singh  24 C.W.N. 110. These decisions were relied on by the learned Munsif in dismissing the plaintiff's suit. There is however abundant authority for the proposition that an agent will not discharge himself from the duty of accounting, by merely delivering to his employer a set of written account; without attending to explain them, and producing vouchers by which the items of disbursements are supported, [See Annada Prosad Roy v. Dwarka Nath Gangopadhyay  6 Cal. 754, Shib Chandra v. Chundra Narain  32 Cal. 719 and Madhu Sudan Sen v. Rakhal Chandra Das Basak  43 Cal. 248] The two cases cited on behalf of the appellant do not lay down any contrary proposition. In the first of. these cases the suit was for accounts against the defendant who had acted as the plaintiff's guardian during the plaintiff's minority and the plaintiff alleged that all the account papers were with the defendant. It was found as a fact that this allegation was wholly and deliberately false and that the account papers were with the plaintiff himself. It was held in that case that the plaintiff by falsely stating that the defendant had the accounts and by declining even in the final stage of the case to produce them had put himself out of Court and his suit should have been dismissed. In the other case the plaintiffs having all the account papers with them withheld them and it was held that every presumption should have been made against them as laid down in illustration (g) of Section 114 of the Indian Evidence Act, even to the extent of dismissing the plaintiff's suit. In the present case the plaintiffs have produced some of the papers, and expressed their willingness to produce some others and if they do not produce the rest, which have been found to have been submitted by the defendant, and offer no explanation for such non-production, the Court will be justified in making a presumption against; him and the length to which that presumption will go will depend upon the circumstances. The defendant, therefore is not absolved from liability to account merely because he has submitted the papers.
5. But the plaintiffs are not entitled to the decree which they have obtained merely because the defendant has not explained the papers- Upon the findings they have got all the accounts in their possession. They alleged in the plaint that the defendant had misappropriated large sums of money, and had made many false or incorrect entries in the accounts and had allowed a certain sum recoverable as rent to be barred by limitation and they tentatively claimed Rs. 1,154-5-3 as being due from the defendant. They alleged further that the defendant had not submitted the papers mentioned in Schedule (kha) and had not explained the papers mentioned in Schedule (ka). It was not stated however whether the plaintiffs had called upon the defendant to explain the accounts. The defendant on the other hand stated that nothing was duo from him and that he had submitted all the papers and had also explained the accounts. The learned Munsif held that the plaintiffs did not produce all the papers which they had in their possession and failed to prove the items mentioned in the plaint as having been wrongly or falsely entered or misappropriated by the defendant. The learned Subordinate Judge has found, as I have already stated, that no papers are due, but that the accounts have not been explained and without finding whether any item requires explanation or has been wrongly or falsely entered has made a decree in favour of the plaintiff. The decree passed under such circumstances can scarcely be justified.
6. On the finding that all the papers have been submitted, the plaintiffs were bound to call upon the defendant to explain the account; which apparently they never did; and if the defendant had expressed his willingness to explain the accounts, if called upon to do so, and averred that he had never been so called upon, we would have been bound to dismiss the plaintiff's suit as being one without a cause of action. This however the defendant has not pleaded. Moreover, the defendant appears to have sent the papers to the plaintiff's Sadar Cutchery and then left, after which he was dismissed. It is therefore not very clear whether the plaintiffs were aware of the submission of the papers so as to necessitate their examining the accounts and calling upon the defendants to explain. The submission of the papers was neither regular nor formal, and the circumstances are not such as would justify us in holding that the plaintiffs should be non-suited for want of a cause of action.
7. At the same time we think that the decree has been too readily passed and the order for examination of the accounts has been made without proper findings or materials. If a decree were justified in the present case it will be open to any principal who has got all the accounts of his agent in his possession, to employ the machinery of the Courts for examining his accounts on the off-chance of making his agent liable for any sum which on such examination may be found due from him. Such indiscriminate issue of commissions by Courts for examining accounts has been condemned by this Court on more occasion; than one, and is indeed, contrary to the spirit of Order 20, Rule 16 of the Code of Civil Procedure, as authorising a Commissioner to determine not merely the quantum' but the factum of liability of an agent, a matter which falls entirely within the province of the Court. The words of that rule a:; also of Rule 11 of Order 26 clearly indicate that before an order can be made for appointment of a Commissioner the examination or adjustment of accounts or the taking of accounts must be considered necessary. In the case of Chand Ram v. Brojo Gobind Das  19 W.R. 14, which was a suit for an account) of money received and disbursed, the plaintiff filed his khata books and did not allege that they had been falsified and the Court deputed an Amin under Section 181 of Act VIII of 1859 to investigate the accounts, it was held that the plaintiff should have made up the accounts himself, without troubling the Court in the matter and should have fixed the amount) due to him from the defendant instead of stating a sum on guess. It was observed that it was surprising that it never struck the Judge as an unusual proceeding on the part of the plaintiff that being provided with account books the entries in which ware disputed by him he should have asked the Court to balance the on count for him instead of making up the total himself. In the present case the plaintiffs gave certain items in their plaint but the finding of the learned Munsif, to which I have already referred, was that none of them had been proved to be false or wrong, and that finding has not been reversed by the learned Subordinate Judge. The position in the present case, therefore, is very much the same as in the case to which I have referred. In the present case the Commissioner has been appointed to take the accounts which is entirely different from a reference made of the cause in a suit for account to a Commissioner. Where in a suit for accounts it was ordered by con-sent of parties that the case should be referred to a commissioner to take ac-counts, who in taking them was to decide upon all questions of fact, whether as to delivery of certain merchandise delivered or otherwise with full powers for the purpose of the investigation and that if questions of law should arise and could not be settled or disposed of before the Commissioner they ware to be submitted to the Court, their Lordships of the Privy Council were of opinion that such a reference was different from the ordinary reference to a Commissioner to examine accounts under the ode of Civil Procedure, and expressed a doubt whether it was competent for the Court to reopen the question of account against a clear finding upon a question of fact relating to the account made by the Commissioner upon the evidence properly before him. (Watson v. Aga Mehedee Sherajee  1 I.A. 346. In the case of Tincouri Debi v. Satya Dayal Banerjee  A.O.D. No. 323 of 1875 where the accounts in a suit bad been referred to a Commissioner appointed under Section 394 of the Civil Procedure Code, with powers under Section 398, Sir Comar Petheram, C.J. in delivering the judgment of the Court on the 2nd August 1889, observed as follows:
It is perfectly clear that the object of this order was to refer to the Commissioner the examination of the accounts for the purpose of enabling the Court to sea what the accounts were, and the duty of the Commissioner was to make out an account in the way an accountant should make out an account, showing to the Court exactly what the account in the books showed and nothing else. The business of the Commissioner was practically to place himself in the position of an assistant to the Court so as to give the Court all the information which the accounts gave so as to enable the Court to decide; and it is obvious that what was intended was that he should take the Bengali accounts, which were filed in 1878 and should, by comparing them with the books, show whether they actually represented what the books showed. That was his duty and, if that had been done, then this Court would have been in a position, when the matter came before it to deal with the matter, because the Court would than have known what the books of the parties showed and would have bean in a position to deal with them in a satisfactory way. It is quite true that under the sections which were mentioned here the Commissioner was entitled to take evidence for certain purposes and the purposes for which a Commissioner is entitled to take evidence are perfectly clear. Where the accounts are ambiguous or where they do not disclose the facts, it is the duty of the Commissioner to take evidence on that point so as to report to the Court what the meaning of a particular series of entries in those books is for the purpose of enabling the Court to give judgment upon them.' It was held in that case it was not clear that the parties had consented to refer the accounts to the Commissioner as an arbitrator and, therefore, the report of the Commissioner was to be treated as non-existent. In the present) case the scope of the Commissioner's enquiry does not appear to have been defined and the proceedings, that were held before him after the decree was passed, amply support that view.
8. The principles governing a suit of this nature are clearly laid down in a series of decisions, amongst which reference may be made to the case of Atai Ahmed v. Nasiban  24 W.R. 70, Annada Prosad Roy v. Dwarka Nath Gangopadhyay  6 Cal. 754, to which I have already referred, Digambar v. Kali Nath  7 Cal. 654, Hurri Nath Rai v. Krishna  14 Cal. 147 and Thirukumaresan v. Subbaraya  20 Mad. 313. Applying there principles to the present] case which is somewhat out of the ordinary, in that it has been found that no account papers are due to the plaintiff:, and where id is not alleged that the defendant has been called upon to explain the accounts and has neglected, failed or refused to do so, it follows that it lies upon the plaintiffs to point out the entries in the accounts which they allege to be erroneous, or in respect of transactions not shown in the accounts, to state what monies have been received and not credited and the Judge will have to deal with the questions thus raised between the parties, treating each item separately. In such a case, as observed in the case of Upendra Kishore Rai Chowdhury v. Ramtara Debya  13 C.W.N. 696, it is the plaintiff's duty to produce the accounts in Court together with a succinct statement of what they contain, and what the balance is whether in his favour or against him. This the plaintiff;; have done to some extent in their plaint, but they should be allowed a further opportunity of examining the accounts and putting before the Court the items they object to or challenge and than the Court will decide as to each particular item or series of items, giving the defendant an opportunity of explaining, supporting or accounting for the said items. If on dealing with the questions so raised it is found that the defendant is liable, then a preliminary decree should be passed directing the Commissioner, to be appointed for the purpose, to examine and adjust the accounts on the basis of the findings of the Court on the questions decided as aforesaid and special directions should be given to the Commissioner as to the scope and limits of the investigation to be held by him, so as to determine the extent of the defendant's liability.
9. A preliminary decree such as has been passed in the present case without any directions as to the scope of the examination such as the circumstances of the case require, is bound to operate to the prejudice and harassment of the defendant to which he should not be subjected in view of the finding that the account papers are not due from him and the fact that he has not been called upon to explain them. It is also open to this further objection that it delegates to the Commissioner, the functions which legitimately appertain to the Court. It is to prevent waste of public time that resort is ho be had to the appointment of a Commissioner, but when it is found necessary to have recourse to the provisions of Order 20, Rule 16, the Judge should follow the directions contained in Order 20, Rule 17 and famish the Commissioner with such part of the proceedings and such detailed instructions as appear necessary.
10. We think, therefore, that the decree passed by the learned Subordinate Judge should be set aside and the appeal dealt with by him in the light of the directions given above.
11. Costs will abide the result.
12. I agree.