Jagjivan Mulchand Chokshi vs Manilal Mohanlal Soni, since Decd. through his heirs

A.M. Kapadia, J.—Instant appeal u/s 100 of the CPC (''the Code'' for short) is directed against the judgment and decree dated

11.12.1997 rendered in Regular Civil Appeal No.35 of 1997 by the learned Joint District Judge, Banaskantha District at Palanpur by which the

appeal filed by deceased respondent who is represented through his heirs and legal representatives in this appeal came to be allowed and thereby

the judgment and final decree dated 2.5.1997 recorded in Regular Civil Suit No.191 of 1966 by the learned Civil Judge (S.D.)., Palanpur

decreeing the suit filed by the appellant for an amount of Rs.1,04,838.75 Ps. together with interest at the rate of 6% per annum from the date of

the suit till its realization on the basis of the Commissioner''s report at Ex.124 came to be quashed and set aside and the matter was remanded to

the Court of learned Civil Judge (S.D.)., Palanpur to decide it afresh after hearing both the parties and after considering the objections Ex.51 and

also permitted the respondents to prove or disprove the account that may be submitted by the parties with regard to the partnership firm and also

cross objections at Ex.11 filed by the appellant was rejected with a liberty to the appellant to agitate the said question regarding interest before the

learned trial Judge.

For the sake of convenience, the parties hereafter referred to as they are arrayed in the trial court.

The facts leading to the present Second Appeal in nutshell are as under:

3.1. The plaintiff and deceased defendant were partners of the firm in the name of Bhagyoday Engineering Company at Palanpur from 19.1.1960

to 9.9.1965. The said firm came to be dissolved with the consent of the deceased defendant. On the day of the dissolution of the firm both of them

have agreed to act for goodwill and accounts as per the writing made on the same day. As per the averments made in the plaint, the deceased

defendant refused to render the accounts as per the said writing dated 9.9.1965. The plaintiff therefore filed suit for taking accounts of the

partnership firm Bhagyoday Engineering Company.

3.2. The said suit was contested by the deceased defendant by filing written statement.

3.3. The learned trial Judge who conducted the suit, vide judgment dated 29.7.1975 dismissed the suit filed by the plaintiff.

3.4. Aggrieved thereby the plaintiff went in appeal before the District Court, Banaskantha at Palanpur by filing Civil Appeal No.79 of 1975. The

lower appellate Judge who heard the appeal, allowed the same and thereby he passed preliminary decree by holding that the plaintiff was entitled

to 56% share and deceased defendant was entitled to 44% share and further directed that the accounts to be taken for the period from 19.1.1960

to 9.9.1965.

3.5. The deceased defendant being aggrieved and dissatisfied by the judgment and decree passed by the learned District Judge, Banaskantha at

Palanpur, filed SA No.385 of 1978 before this Curt and this Court partly allowed the appeal and thereby the share of the parties were determined

at 50% each and also directed for taking accounts for the period stated by the first appellate court.

3.6. Against the judgment and decree passed by this Court in Second Appeal No.385 of 1978, the deceased defendant carried the matter to the

Supreme Court by filing Appeal No.785 of 1980 which came to be dismissed vide judgment and order dated 24.2.1994. As a result thereof, the

decree passed by this Court in Second Appeal No.385 of 1978 determining the share of parties at 50% each and further direction for taking

accounts for the period stated by the first appellate Court was confirmed and the matter was remanded to the trial court for passing final decree.

3.7. The trial court thereafter appointed Commissioner for taking accounts under the provisions of Order 26 Rules 11 and 12 of the Code for

taking accounts of the partnership firm in dispute.

3.8. The Commissioner appointed by the Court, on the basis of the available evidence in the form of purchase register and sale register and other

documents, made a final report at Ex.44/1 (Ex.124) and on the basis of the said final report, the learned trial Judge passed the final decree dated

2.5.1997 recorded vide Ex.125.

3.9. Deceased defendant aggrieved by the said final decree, preferred appeal before the District Court, Banaskantha at Palanpur which was

numbered as Regular Civil Appeal No.35 of 1997. In the said appeal, the plaintiff had also filed cross objections at Ex.11 agitating the question

regarding interest. The learned Joint District Judge, Banaskantha at Palanpur who heard the appeal, allowed the same and thereby the judgment

and final decree dated 2.5.1997 recorded below Ex.125 has been quashed and set aside and the matter was remanded to the trial court for

deciding it afresh after hearing both the parties and after taking into consideration the objections filed by the deceased defendant at Ex.51 and the

deceased defendant was permitted to prove or disprove the accounts that may be submitted by the parties and rejected the cross-objections filed

by the plaintiff at Ex.11 with a liberty to the plaintiff to agitate the said question regarding interest before the learned trial Judge which has given rise

to the present Second Appeal at the instance of the original plaintiff.

The Second Appeal has been admitted by this Court (Coram: Y.B. Bhatt, J.) vide order dated 25.1.1999 on the following substantial questions

of law:

Whether on the facts and circumstances of the case, in view of the evidentiary material on record and in view of the application of law to such

facts and evidence, exh.51 filed by the defendant was separately and independently required to be dealt with by the trial court?

Whether the lower appellate court was justified in refusing the amendment sought by the plaintiff as regards raising the rate of interest in view of

the amended provisions of CPC namely Sec.34 thereof?

Any other question which may arise during the course of hearing.

At the time of hearing of this appeal, Mr. DK Acharya, learned advocate of the deceased defendant raised a preliminary objection about

maintainability of the Second Appeal. According to him, the learned Joint District Judge has allowed the appeal filed by the deceased defendant

and thereby remanded the matter to the learned trial Judge for deciding afresh and thereafter to pass final decree. He has contended that the

learned Joint District Judge who heard the appeal came to the conclusion that the learned trial Judge has not considered the objections raised by

the deceased defendant at Ex.51 and, therefore, the order of remand was passed under Order 26 Rule 23 or 23-A of the Code and against the

said order of remand by virtue of Order 43 Rule 1-U of the Code, Appeal from Order would lie and not Second Appeal. Therefore, according to

him, this Second Appeal is not maintainable.

In counter submission, Mr. MB Gandhi, learned advocate of the plaintiff, has submitted that before the District Court, in the appeal filed by the

deceased defendant, the plaintiff had also filed cross-objections at Ex.11 which came to be rejected and therefore this appeal filed by the plaintiff is

against both the orders by which the appeal filed by the deceased defendant came to be allowed whereas the cross-objection filed by the plaintiff

came to be rejected and in instant appeal, the plaintiff has challenged both the orders. Therefore, according to him, the present Second Appeal is

maintainable before this Court.

In order to answer the perliminary objection raised by Mr. DK Acharya, we have to advert to the factual backdrop of the case. There is no

dispute that before the District Court, deceased defendant has filed appeal being Regular Civil Appeal No.35 of 1997 against the judgment and

final decree dated 2.5.1997 recorded below EX.125 by the learned Civil Judge (S.D.)., Palanpur. In the said appeal, the plaintiff had also filed

cross-objections at Ex.11 wherein he claimed more interest than 6% per annum awarded by the learned trial Judge. The learned Joint District

Judge who heard the appeal, vide order dated 11.12.1997 allowed the appeal and rejected the cross-objections and thereby remanded the matter

to the trial court for deciding afresh. Therefore, obviously, the plaintiff has filed this Second Appeal against the consolidated decree passed by the

learned Joint District Judge allowing the appeal filed by the deceased defendant and rejecting the cross-objections filed by the plaintiff. So far as

rejection of cross-objections filed by the plaintiff is concerned, there is no manner of doubt that Second Appeal would lie to this Court as rejection

of cross-objections is a decree as defined under sub-section 2 of section 2 of the Code and therefore obviously Second Appeal would lie against

the rejection of the cross-objections and therefore it has to be held that the plaintiff cannot be directed to file Second Appeal against the rejection

of the cross-objection and to file Appeal from Order against the order allowing the appeal filed by the deceased defendant and thereby remanding

the matter to the trial court. Therefore, it would be an absurd situation to direct a party that against one para or finding of Court, Appeal from

Order to be filed and again against second para or finding appeal to be filed and hence the Second Appeal can be filed against rejection of cross-

objections and hence the Second Appeal would lie.

It is also required to be noted that when the Second Appeal was filed, the deceased defendant had filed caveat and after hearing both the

parties, this Court (Coram: Y.B. Bhatt, J.) admitted the Second Appeal vide order dated 25.1.1999 after formulating the substantial questions of

law. Therefore, now after a span of seven years and more the dispute which is raised by the deceased defendant malafide that Second Appeal is

not maintainable because the order of remand was passed under Order 41 Rule 23 and 23-A of the Code. It is well settled that once the matter is

admitted, it cannot be disposed of on the ground that there is an alternative remedy available or the particular appeal or revision is not maintainable

unless the statutory bar comes into play. There are numerous decisions to the effect that even if statutory appeal or revision is open, the Courts

have power to exercise jurisdiction under Articles 226 and 227 of the Constitution of India. So far as the present appeal u/s 100 read with Order

42 of the Code is concerned, it has been admitted and now it is for the final hearing and therefore the issue cannot be raised that appeal is not

maintainable and the order of remand is appealable order and Second Appeal is not maintainable. Therefore, the contention raised by Mr. DK

Acharya, learned advocate of the deceased defendant, that the Second Appeal is not maintainable since the order of remand is an appealable

order cannot be permitted to be raised that the Second Appeal is not maintainable and hence the said contention deserves to be rejected and

accordingly it is rejected.

Now having held that the Second Appeal would be maintainable, the question that calls for determination of this Court is whether the learned

Joint District Judge, Palanpur was justified in allowing the appeal filed by the deceased defendant against passing of final decree and thereby

remanding the matter to the learned trial Judge for deciding afresh or before whom where there was ample evidence to decide the matter on merits

could have considered the same and passed appropriate orders and by remanding the matter to the trial court he has passed the order in a most

cavalier fashion.

According to Mr. Gandhi, learned advocate of the plaintiff, while passing the final decree by the learned trial Judge, all the applications filed by

deceased defendant have been considered and the report of the Commissioner was nothing but arithmetical calculation arrived after verification of

registers and the learned trial Judge having been satisfied by it has passed the final decree. It is also asserted by him that looking to EX.51 it is

nothing but only objection of the deceased defendant against the report of the Commissioner and once the objection has not been considered by

the trial court, meaning thereby it has been rejected by the trial court and therefore there is no reason to consider the said objections afresh by the

trial court.

In sum and substance, the submission of Mr. Gandhi is that the learned Joint District Judge in a most cavalier fashion decided the appeal and

simply because of the direction issued by this Court to decide the matter on merits on or before 20.11.1997, with a view to shirk responsibility, he

has remanded the matter. There was ample evidence produced before the court and therefore he could have decided the appeal on merits. Instead

of deciding the appeal on merits, he has passed the order of remand which can never be sustained in the eyes of law. So far as the cross-objection

filed by the plaintiff is concerned, the learned Joint District Judge has without considering the written submission produced by the plaintiff rejected

the same. It is a matter of appreciation of evidence and in view of the amendment made in proviso to Section 34 of the Code the trial court ought

to have awarded the interest at the rate at which monies are lent or advanced by the nationalized bank in respect of commercial transaction and the

transaction between the plaintiff and deceased defendant was a commercial transaction and therefore according to him, the learned trial Judge has

also committed error in law in not granting interest at the commercial rate at which monies are lent or advanced by the nationalized bank in respect

of commercial transactions. The learned Joint District Judge has also not considered this aspect which has resulted into miscarriage of justice.

Therefore, according to him, the judgment and order allowing the appeal filed by the deceased defendant and rejecting the cross-objections filed

by the plaintiff is not in accordance with law and settled principles enunciated by the Supreme Court with respect to the remand of matters and

therefore the same is deserved to be quashed and set aside by dismissing the appeal filed by the deceased defendant and by allowing the cross-

objections filed by the plaintiff. Therefore, according to him, the substantial questions of law formulated at the time of admission of the appeal are

required to be answered in favour of the plaintiff and against the deceased defendant by allowing this appeal. He therefore urged to allow the

appeal.

Per contra, Mr. DK Acharya, learned advocate of the deceased defendant, has raised several contentions with regard to remand of the suit

and objections against the commissioner''s report. According to him, the learned trial Judge has not decided the objections raised by the deceased

defendant in its proper perspective and wrongly relied upon the final report submitted by the Court Commissioner vide Ex.124 and on the basis of

the same erroneous decree is passed vide Ex.125 which is against the settled principles of law and therefore the learned Joint District Judge has

very rightly remanded the matter for deciding the applications afresh. Therefore, according to him, the questions formulated by this Court at the

time of admission of the appeal are not questions of law much less substantial questions of law and they are questions of facts which are not

required to be gone into by this Court u/s 100 of the Code in this appeal and therefore the appeal deserves to be dismissed. He, therefore, urged

to dismiss the appeal.

This Court has considered the submissions advanced by Mr. MB Gandhi, learned advocate of the plaintiff and Mr. DK Acharya, learned

advocate of deceased defendant and perused the impugned judgment and decree as well as final decree drawn by the learned trial Judge which

was impugned before the learned Joint District Judge and various orders which are annexed with this appeal and also the paper-book containing all

the orders and the decisions cited at the bar.

So far as the factual matrix of passing of the preliminary decree is concerned, there is no dispute between the parties. There is a preliminary

decree determining the share of the plaintiff and deceased defendant in the ratio of 50:50 and also direction to take accounts for the period from

19.1.1960 to 9.9.1965. While passing the final decree, the learned trial Judge has appointed Court Commissioner under the provisions of Order

26 Rules 11 and 12 for taking accounts of the partnership firm in dispute. The Court Commissioner has collected the evidence of purchase and

sale registers and other documents which were available before him and in turn he made final report at Ex.124.

On having look at Ex.51, there is no manner of doubt that it is nothing but only objections of the deceased defendant against the report of the

Commissioner and on having examined the contents of the same, deceased defendant had stated therein that he had already filed objections at

Ex.32 and a contention was raised that true accounts could not be taken by the Commissioner unless and until the Ublakh sales books and bills

were produced. It was also further alleged therein that the plaintiff was in possession of all the stock registers and Ublakh sales books and

therefore the plaintiff should produce the same on record. A further contention was raised that whatever account books were prepared they were

not properly prepared and they were wrongly prepared and reliance on the sales register on the basis of bills was wrong and further contended

that sales register which was prepared by the Commissioner was without the Ublakh books and therefore it could not determine the liability and

therefore it was submitted that unless and until the stock register and Ublakh books were produced by the plaintiff, the report of the Commissioner

may be rejected. It is required to be noted that in this application Ex.51 no prayer was made and hence it was nothing but objections against the

accounts which were prepared by the Court Commissioner which was final report at Ex.44/1 which was exhibited at Ex.124. Therefore, in

absence of any application being made or any prayer being made, the Court is not required to or bound to decide the same and when the Court

finally passed the decree that means that all such objections are overruled and this particular aspect was not challenged nor Ex.51 was ever insisted

for being considered and therefore under the circumstances by relying upon the report of the Commissioner, the Court has passed the final decree

which according to this Court is proper.

There is a reference in Ex.51 about Ex.32 and on a perusal of Ex.32, it is seen that a prayer was made that specific order may be passed as to

how and what accounts are to be taken in reference to Ex.90. It was further prayed that the plaintiff may specifically be ordered to produce

necessary stock books and Ublakh books for the said accounts. It was further prayed that the plaintiff may also be ordered to produce necessary

accounts, balance sheets. This application was rejected vide order dated 7.10.1985 by the learned trial Judge. After rejection of the said

application, deceased defendant gave application EX.76 and in this application it was contended that Ublakh books of the firm''s account were

with the plaintiff and it was further stated that vide Ex.24 the issues were framed and issue No.7 was whether the plaintiff proves that the books of

accounts were given to the defendant. The finding of this issue was held in affirmative and this application was submitted on 20.10.1994. The

learned Civil Judge (SD) vide order dated 29.4.1994 rejected the said application after referring to the application tendered by the defendant at

Ex.32 and 33.

Thereafter again an application vide Ex.77 was given on 20.10.1994 by the deceased defendant wherein it was requested to call the Court

commissioner for cross-examination. This application also came to be rejected vide order dated 29.4.1995. Thereafter again Ex.87 was tendered

by the deceased defendant with regard to the accounts prepared by the Court commissioner and prayed that the court commissioner was not an

expert in taking accounts and therefore permission for taking accounts as mentioned in the application and for preparing the accounts by a

Chartered Accountant appointed and the defendant be allowed to prepare the account books of the firm in presence of the representative of the

plaintiff and the deceased defendant. This application was given on 28.6.1995. Thereafter again an application Ex.90 was submitted for issuance of

commission patra. After issuance of commission patra Ex.1 the Court commissioner produced a report at Ex.44/1 with regard to the accounts. In

this connection, a lengthy application was given in which the advocate of the deceased defendant referred to all the previous exhibits i.e., 32, 11

and 51 and preliminary decree on the basis of the report of the commissioner wherein he passed that accounts being taken and decree in favour of

the plaintiff for a sum of Rs.1,04,838.75 Ps. was passed. This application was heard at length and a common order below Ex.87 and 90 was

passed vide order dated 31.8.1996 and thereby both the applications came to be dismissed by the learned Civil Judge (SD) who heard both the

applications.

On having perusal of the said order, it is seen that various remarks were adduced and the learned Judge came to the definite finding that the

Commissioner has submitted the report and therefore only the report can be seen and the legality of that report is to be appreciated. It was further

observed that whether the report was in breach of the legal provisions or not or whether the report was against the provisions of Rules 11 and 12

of Order 26 of the Code or not cannot be decided. It was also further observed that the court cannot decide the issue after recording fresh

evidence and therefore on the basis of the facts the application was dismissed.

It may be appreciated that against the order below Ex.87 and 90 rejecting the applications, Civil Revision Application No. 1750 of 1996 was

preferred before this Court (Coram: D.G. Karia, J.) which was ultimately withdrawn on 2.9.1997.

At this stage, it is also required to be mentioned that deceased defendant moved an application Ex.12 in which a prayer was made for

permission to take inspection of the books, vouchers, etc. in the presence of the Clerk of the Court for preparing balance sheet, etc. by an

experienced accountant. The said application was made on 21.1.1984 which came to be granted by the learned trial Judge by granting permission

as sought for.

Thus taking into consideration all these facts and totality of the evidence, the order which is passed by the learned Joint District Judge

remanding the matter to the trial court for deciding afresh is absolutely unjust, uncalled for, perverse, arbitrary and capricious and according to the

direction of this Court the matter was to be decided by him at the earliest but to shirk his responsibility, the Joint District Judge has remanded the

matter to the learned Civil Judge (S.D.)., for deciding afresh and therefore according to this Court, the said order is not sustainable.

Now again reverting to Ex.77 which is an application seeking permission to cross-examine the Commissioner which was rejected, it may be

noted that the defendant had filed Civil Revision Application No.1406 of 1995 before this Court against the said order which also came to be

dismissed as withdrawn. Therefore, the order passed below Ex.77 reached to its finality. Therefore, it is not open for the defendant to agitate the

said point again.

It is also required to be appreciated that one more application was filed by the deceased defendant on 1.7.1998 wherein the learned Civil

Judge (SD) passed an order to the effect that after the stock register was ready the defendant could examine the same by an expert. Similarly,

defendant moved an application EX.131 which came to be partly allowed vide order dated 17.6.1998 and the deceased defendants was

permitted to inspect the relevant documents as mentioned in the application for preparation of accounts before the Clerk Of the Court. Thereafter

again one more application was moved at Ex.137 to prepare the balance sheet from the bill books and other documents which were produced

before the court through a person who knew computer. The said application was rejected by the Court however with a permission to the

deceased defendant to obtain xerox copies thereof through the court which would solve the problem.

On having examined all the applications submitted by the deceased defendant and the order passed thereunder by the learned trial Judge there

is no manner of doubt that the learned trial Judge has considered all the applications in their true sense and spirit and passed appropriate orders in

the facts and circumstances emerging from the record of the case. Against some orders the defendant also preferred revision applications before

this Court which also came to be rejected having not pressed for or withdrawn. Therefore, all the orders passed by the learned trial Judge on

various applications filed by the defendants reached to their finality and therefore question that arises for consideration of this court is as to whether

the order passed by the learned Joint District Judge remanding the matter to the learned trial Judge to decided afresh was justified when he had

also an occasion to consider all the applications submitted by the deceased defendant and order passed below the same by the learned trial Judge.

It is settled principles enunciated by the Supreme Court that there should be no remand where the court is in a position to examine the

documents and come to an independent conclusion. The Supreme Court in catena of decisions has held that reasoning even if wrong, question of

remand does not arise and as far as possible in the litigation which is a protracted litigation remand should be avoided.

In this connection it would be advantageous to refer to the decision of the Supreme Court in the case of Bechan Pandey and Others Vs. Dulhin

Janki Devi and Others, wherein the Supreme Court has made pertinent observation in paragraph 9 of its judgment which is required to be quoted

in extenso which reads as under:

Prayer has also been made by Mr. Sarjoo Prasad for the remand of the case to the trial court as the plaintiff-appellants were laboring under the

impression that the defendant-respondents had not disputed that the land in dispute was the same as had been purchased by Maina Kuer. It is

urged that because of that impression, material which could have clearly proved that the land in dispute was the same as had been purchased by

Maina Kuer could not be brought on the record. We find it difficult to accede to this prayer. As already pointed out above, the contesting

defendants clearly stated in their written statements that Maina Kuer was not the auction purchaser of the land in dispute. In view of that

unequivocal averment, there was no valid basis for the assumption or the impression under which plaintiff-appellants are stated to have labored.

Apart from that, we find that the suit out of which the present appeal has arisen was filed as long ago as January 1950. From the title of the appeal

we find that many of the original plaintiffs and defendants have during this period of more than a quarter of century departed, and are no more in

the land of the living, having bowed as it were to the inexorable law of nature. They are now represented by their legal representatives. To remand

the suit to the trial court would necessarily have the effect of keeping alive the strife between the parties and prolonging this long drawn litigation by

another round of legal battle in the trial court and thereafter in appeal. It is time, in our opinion, that we draw the final curtain and put an end to this

long meandering course of litigation between the parties. If the passage of time and the laws of nature bring to an end the lives of men and women,

it would perhaps be the demand of reason and dictate of prudence not to keep alive after so many years the strife and conflict started by the dead.

To do so would in effect be defying the laws of nature and offering a futile resistance to the revage of time. If human life has a short span, it would

be irrational to entertain a taller claim for disputes and conflicts which are a manifestation of human frailty. The courts should be loath to entertain a

plea in a case like the present which would have the effect of condemning succeeding generation of families to spend major part of their lives in

protracted litigation. It may be appropriate in the above context to reproduce what was said in the case of Sant Narain Mathur and Others Vs.

Rama Krishna Mission and Others,

It is time, in our opinion, that we draw the final curtain on this long drawn litigation and not allow its embers to smoulder for a further length of

time, more so when the principal contestants have all departed bowing as it were to the inexorable law of nature. One is tempted in this context to

refer to the observations of Chief Justice Crewe in a case concerning peerage claim made after the death without issue of the Earl of Oxford. Said

the learned Chief Justice:

Time hath its revolutions; there must be a period and an end to all temporal things - an end of names, and dignities and whatsoever is terrene, and

why not of De Vere? For where is Bohun? Where is Mowbray? Where is Mortimer? Why, which is more and most of all, where is Plantagenet?

They are all entombed in the urns and sepulchers of mortality.

What was said about the inevitable end of all mortal beings, however eminent they may be, is equally true of the affairs of mortal beings, their

disputes and conflicts, their ventures in the field of love and sport, their achievements and failures for essentially they all have a stamp of mortality

on them.

One feels tempted to add that if life like a dome of many coloured glass stains the white radiance of eternity, so do the doings and conflicts of

mortal beings till death tramples them down.

Applying the principles laid down by the Supreme Court in the above referred to judgment to the facts of the present case, it cannot be

disputed that the parties are litigating since 1966. One round of litigation went upto Supreme Court and it was over by drawing of preliminary

decree. Thereafter second round of litigation has started and half of the way of final decree is also over and now after a period of about 40 years in

a protracting litigation remand order should have been avoided as far as possible when there was material on record before the learned Joint

District Judge to consider all the orders passed on the applications filed by the deceased defendant which according to this Court were filed with a

view to delay the proceedings and with ulterior motive not to proceed further with the matter even after passing of the preliminary decree against

him. The said practice is required to be deprecated as in instant case remanding the matter to the trial court the learned Joint District Judge has

granted de novo second round of the litigation which cannot be permitted by the Court of law.

At the cost of repetition, it may be appreciated that the Court Commissioner was appointed under Order 26 Rules 11 and 12 of the Code for

the purpose of investigating the accounts of the partnership firm and he made his report. On the basis his report, the trial court passed final decree

Ex.125 and the trial Court has relied upon the report of the Court Commissioner as well as the oral evidence produced before the Court. Not only

that but before the Commissioner was appointed by the Court when preliminary decree was passed both the parties have led evidence and that

oral evidence was on the record of the case and the Court Commissioner who was appointed had also referred to the said oral evidence of the

parties concerned and therefore the finding of the trial court drawing final decree is based on the documentary as well as oral evidence on record

which cannot be disturbed unless it is found that some special factors have escaped the notice of the trial court.

In this connection, it is appropriate to refer to the decision of the Calcutta High Court in the case of Amena Bibi and others Vs. Sk. Abdul

Haque, wherein the Calcutta High Court has held that when report of the valuation of the property made by the Commissioner has been accepted

by the Court, the party cannot subsequently say that enquiry was biased and prejudicial. However, parties are not precluded from leading evidence

to countermand the report.

Similarly, in the case of Dr. P. Subramoniam Vs. K.S.E. Board and Others, wherein the Kerala High Court has said that when the electrical

inspector who was appointed as Court Commissioner has submitted report, the application made by the petitioner for setting aside the report

submitted by the electrical inspector and to appoint an advocate as new Commissioner cannot be granted.

Applying the principles laid down by the Calcutta High Court in Amena Bibi''s case (supra) and Kerala High Court in Dr. P. Subramoniam''s

case (supra) to the facts of the present case, the report of the Court Commissioner which was validly prepared and on the basis of the same, final

decree is drawn could not have been upset by the learned Joint District Judge by remanding the matter to decide afresh and thereby permitting the

deceased defendant to avail fresh round of inning in the second inning of the litigation.

It may be noted that from the tenor of the judgment and decree passed by the learned Joint District Judge, it appears that the learned Joint

District Judge has remanded the matter in exercise of powers conferred under Order 41 Rule 23-A of the Code. But for coming to the said

conclusion, that is, for remanding the matter, the Court has to come to the conclusion as to what issues are not properly decided and what issues

are at controversy between the parties and for what issue the Court has imposed that particular controversy and whether the appellate court is

required to frame an issue and to remand the matter for that limited purpose. In instant case, the learned Joint District Judge has decided nothing

but merely found out without application of mind that Ex.51 application given by the deceased defendant has remained undecided. At the cost of

repetition, be it stated that Ex.51 was not an application with any prayer but it was nothing but some sort of objections against the report of the

Commissioner produced at Ex.124. Therefore, unless a prayer is made in the application, question of hearing does not arise and when the

objection is not considered, there is a presumption that they are overruled. Once the court has accepted the report of the Commissioner and final

decree is passed, objections raised by the defendant are rejected.

In this connection, it would be appropriate to refer to Explanation V to Section 11 of the Code which reads as under:

Any reliefs claimed in the plaint which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been

refused.

Thus, on the basis of this principle, the application which was given by the deceased defendant though in fact not an application but mere

objections, and when the order is passed and the report of the Commissioner is accepted and exhibited vide Ex.124 and decree is drawn vide final

decree at Ex.125 on the basis of the said report, the said application is deemed to have been rejected. In this backdrop, order passed by the

learned Joint District Judge remanding the matter to the trial Court is absolutely contrary to the provisions contained in Rule 23 and Rule 23-A of

Order 41 of the Code and therefore such an illegal order is required to be quashed and set aside.

Much hue and cry has been made by Mr. DK Acharya, learned advocate of the deceased defendant, that the deceased defendant should have

been given an opportunity to cross-examine the Court Commissioner. According of this court, question of cross-examination of the Commissioner

does not arise because the appointment of the Commissioner was made under Order 26 Rules 11 and 12 of the Code which is altogether for a

different purpose than other commissioners who are appointed by reference to the said order. In instant case, the Court commissioner was

appointed to examine the accounts and then in that case proceedings before the Commissioner and the report of the commissioner formed part of

the evidence. Therefore, it is provided in Rule 12(2) of Order 26 that proceedings and report to be the evidence and it is provided in the Code that

Court may direct further inquiry where the Court has reason to be dissatisfied with the report. In instant case, the trial court has not found anything

wrong with the report. Not only that but the deceased defendant who way back vide Ex.12 made application that he should be permitted to look

into the accounts. Thereafter various other applications were made in which the Court had given permission that the deceased defendant can look

into the accounts and copy down the accounts in presence of the Clerk of the Court and therefore fullest opportunity was given and that if he finds

that the accounts prepared by the Commissioner were not proper, again he was given liberty to examine his own witness to prove as to what

defects are there in the report submitted by the Commissioner. However, the deceased defendant had no right to cross-examine the Commissioner

because the report of the commissioner is an evidence admissible into evidence as per the said Rule and therefore as held in Amena Bibi''s case

(supra) the Court Commissioner is appointed to collect the accounts, report is a piece of evidence. Similarly, in Dr. P. Subramoniam''s case

(supra), Kerala High Court has held that report of the Court Commissioner under Order 26 Rule 12 becomes part of the evidence.

On over all view of the matter, considering all the facts and various applications submitted by deceased defendant and the orders passed

below the same to which reference is made in detail in earlier paragraphs of this judgment, it has to be held that the court Commissioner''s report at

Ex.124 was correct and it was rightly accepted by the trial court and therefore unless and until anything special is found or contrary is pointed out,

the question of remanding the matter does not arise and therefore the judgment of the trial court based on the oral as well as documentary evidence

has to be accepted and it has to be held that the learned Joint District Judge has reached to an erroneous finding and with a view to shirk

responsibility to examine all these documents made an erroneous order of remanding the matter to the trial court for deciding afresh by granting de-

novo trial in the second round of the litigation to the deceased defendant. Therefore, the judgment and decree passed by the learned Joint District

Judge is required to be quashed and set aside by allowing this appeal and resultantly the judgment and final decree dated 2.5.1997 recorded

below Ex.125 by the learned trial Judge in favour of the plaintiff and decreeing the suit for an amount of Rs.1,04,838.75 is required to be affirmed

and restored.

Now this takes me to the cross objection filed at Ex.11 by the plaintiff claiming enhanced rate of interest than 6%. The learned Joint District

Judge by the same judgment and decree rejected the cross-objections filed by the plaintiff claiming enhanced rate of interest.

According to Mr. Gandhi, learned advocate of the plaintiff, the plaintiff has submitted an application at Ex.80 before the trial court praying that

the suit was filed in 1966 and four decades were over and the rate of interest has also undergone a great change. At the time when the suit was

filed the rate of interest was 6% as per the provision of section 34 of the Code. He further submitted that thereafter the Code was amended and by

virtue of amendment made in section 34 of the Code it is provide that whenever there is a commercial transaction in that case it is open for the

courts to grant interest higher than 6% though not higher than contractual rate of interest. In the alternative the bank rate of interest is always made

available to the commercial transaction. It was further contended by him that the suit filed by the plaintiff was for dissolution of partnership firm and

taking accounts and therefore it is nothing but a commercial transaction. Though 40 years period is over and the parties are litigating for the last 40

years and therefore application Ex.80 ought to have been allowed by the learned trial Judge which was not allowed and therefore in an appeal filed

by the deceased defendant before the learned Joint District Judge the plaintiff filed cross-objection at Ex.11 which ought to have been allowed by

the learned Joint District Judge. Therefore, he urged to allow the cross-objection filed by the plaintiff. In this connection, he has relied upon the

reported decision in the case of Mahendra Singh Jaggi Vs. Dataram Jagannath,

On the basis of the aforesaid submission, it is pointed out by Mr. Gandhi that the deceased defendant who was managing the accounts and

affairs of the firm was required to submit the accounts which was not being rendered therefore decree of Rs.1,04,838.75 together with interest at

the rate of 6% may be enhanced at the rate of 15% and the cross objection filed by the plaintiff at Ex.11 and the application at Ex.80 may be

allowed.

Per contra, Mr. DK Acharya, learned advocate of the deceased defendant, vociferously contended that the learned Joint District Judge has

very rightly rejected the cross-objections. According to him, in the instant case, there is no commercial transaction between the parties and

therefore rule of commercial transaction relating to interest would not apply and further to award interest is a discretionary power of the Court and

therefore the learned Joint District Judge has very rightly rejected the cross-objection which does not call for any interference in this appeal.

It is true that the plaintiff has filed the suit way back in the year 1966 against the deceased defendant for taking accounts. The parties have

litigated upto the Supreme Court in the first round of litigation, that is, at the time of preliminary decree and thereafter after drawing final decree

also the parties have to come before this Court. Therefore, obviously if the matter would have been reached to finality earlier then the amount of

decree i.e., Rs.1,04,838.75 would have yielded more return in the hands of the plaintiff. However, in instant case, the plaintiff has not advanced

any money to the deceased defendant. But the deceased defendant had not rendered the accounts. Therefore, it remained outstanding. There was

no relation between the parties as lender and the borrower. Therefore, according to this court, the liability in relation to cash credit arrangement is

not arising out of a commercial transaction and therefore provisions of section 34 of the Code would not be attracted.

In Mahendra Singh Jaggi''s case (supra), the Supreme Court in para 14 of the reported decision has said that relationship between parties on

the facts of the said case was not only that of lender and borrower but there was agreement similar to cash credit arrangement with bank. The

bank rate of interest at the relevant time was 12%. Therefore, rate of future interest as awarded on money decree was reduced from 18% to 12%.

This judgment is not applicable to the facts of the present case as this Court has already observed that the liability in relation to the same was not

arising out of commercial transaction. Therefore, according to this court, the plaintiff is not entitled to enhanced rate of interest than 6% awarded

by the trial court.

In aforesaid view of the matter, the learned trial Judge has very rightly rejected the application Ex.80 as well as the learned Joint District Judge

has also rightly rejected the cross-objection filed by the plaintiff at Ex.11.

The end product of the aforesaid discussion would lead to the final conclusion that foolproof final decree dated 2.5.1997 recorded vide

Ex.125 on the basis of the report submitted by the Court Commissioner vide Ex.124 decreeing the suit filed by the plaintiff for an amount of

Rs.1,04,838.75 Ps. together with interest at the rate of 6% is in consonance with the evidence and this Court finds itself in complete agreement

with the findings recorded, conclusions arrived at and ultimately decision reached by the learned trial Judge. According to this court, on the basis of

the evidence on record, no other conclusion could have been arrived at except the one reached by the learned trial Judge and this Court affirms the

said finding as according to this Court the said finding is just and legal and no infirmity is committed by the learned trial Judge in recording the same.

The learned Joint District Judge has without assigning any cogent reason and with a view to shirk responsibility of not examining the foolproof

final decree passed by the trial court in its proper perspective passed the order of remand which, according to this Court, is absolutely erroneous.

On the contrary, there is ample evidence that in application Ex.51 submitted by the deceased defendant there was no prayer and only objections

were sought to be raised which was rightly decided by the trial court. By remanding the matter, the learned Joint District Judge has reopened not

only the said application but other applications as well which were filed by the deceased defendant and decided by the trial court on its own merits

after giving ample opportunity to the deceased defendant. The matter did not rest there. The deceased defendant carried the matter to this court by

filing revision applications against those orders and this Court also confirmed those orders in various revision applications filed by the deceased

defendant. Therefore, according to this Court, by the order of remand, the learned Joint District Judge has passed the order in a most cavalier

fashion. The learned Joint District Judge has reopened all the chapters which have reached finality up to this Court and thereby granted de-novo

trial in second inning to the deceased defendant which can never be sustained on the facts and circumstances emerging from the record of the case.

In aforesaid view of the matter, the first substantial question of law formulated by this Court is required to be answered in favour of the plaintiff

and against the defendants by saying that Ex.51 filed by the deceased defendant was not required to be dealt with separately and independently by

the trial court as according to this court Ex.51 is nothing but an objection wherein no prayer was made. So far as second substantial question of

law is concerned, in view of the detailed finding given by this Court, it is required to be answered in favour of the deceased defendant and against

the plaintiff by saying that the lower appellate court was justified in refusing to grant the relief sought by the plaintiff as regards raising rate of interest

in view of the amended provisions of Section 34 of the Code.

Before parting, this Court with anguish and pain observes that the deceased defendant was in the habit of filing false and frivolous applications

even after passing of the preliminary decree with a view to delay the proceedings so that the plaintiff may not get the fruits of the preliminary decree

passed in his favour. On the contrary, the deceased defendant ought to have cooperated with the Court Commissioner for the speedy conclusion

with regard to deciding the dues of the plaintiff from him. Instead of that the deceased defendant adopted the tactics of exhausting the trial court by

filing one after another application and thereby filing series of applications and this type of practice is required to be deprecated and this Court

deprecates the said practice.

It is a matter of common experience that the Indian litigants start facing problem after getting preliminary decree in their favour because while

passing the final decree Court has to depend upon the Commissioner or Receiver appointed by it and even before the Commissioner or Receiver

appointed by it lot many applications raising objections are being filed. The matter does not rest here. Even after submission of the report by the

Commissioner or Receiver lot many applications are filed by the deceased defendant just with a view to delay the drawing of final decree. The

plaintiff initiated the suit way back in the year 1966 and therefore around 40 years have elapsed and even today he has not been able to get the

fruits of the preliminary decree passed in his favour which has been confirmed upto the Supreme Court on 24.2.1994. The matter took 11 years

for drawing final decree after passing of the preliminary decree. Therefore, this Court hopes that this litigation will come to an end by this judgment

and the chapter would be closed here.

For the foregoing reasons, the appeal succeeds in part and accordingly it is partly allowed with cost which is quantified at Rs.10,000/-.

Resultantly, the judgment and decree dated 11.12.1997 rendered by the learned Joint District Judge, Banaskantha District at Palanpur in Regular

Civil Appeal No.35 of 1997 remanding the case to the trial court to hear it afresh is hereby quashed and set aside whereas the order rejecting the

cross-objection at Ex.11 filed by the plaintiff is confirmed. Final decree dated 2.5.1997 recorded below EX.125 decreeing the suit filed by the

plaintiff against the deceased defendant directing the deceased defendant to pay an amount of Rs.1,04,838.75 Ps. together with interest at the rate

of 6% from the date of filing of the suit till its realisation is hereby confirmed and restored.

While parting, it is required to be noted that while admitting this appeal, this Court had directed the deceased defendant vide order dated

25.1.1999 to renew the bank guarantee which was issued in favour of the learned Civil Judge (S.D.)., Palanpur which was stated to have been

expired on 31.12.1998 or to obtain a fresh bank guarantee for the identical amount and to keep the said bank guarantee alive till disposal of this

appeal. Since this appeal is allowed and the trial court''s decree is restored in favour of the plaintiff, the bank guarantee of Rs.3,10,000/- (Rupees

three lakh and ten thousand only) which is lying with the trial Court issued in favour of the learned Civil Judge (S.D.)., Palanpur shall be permitted

to be encashed by the plaintiff and in this regard necessary direction is required to be issued to the learned Civil Judge (S.D.)., Palanpur to encash

the said bank guarantee and to give the said amount to the plaintiff towards the satisfaction of the decree.

Having regard to the facts and circumstances of the case, the learned Civil Judge (S.D.)., Palanpur in whose favour the bank guarantee of

RS.3,10,000/- (Rupees three lakh and ten thousand only) has been issued which is lying with him is directed to encash the said bank guarantee and

pay the said amount to the plaintiff towards the satisfaction of the decretal amount and thereafter if any further amount remains outstanding to the

plaintiff from the deceased defendant, it would be open for the plaintiff to recover the same from the heirs and legal representatives of deceased

defendant from their person and property by taking appropriate legal action.

On pronouncement of the CAV judgment in Court, Mr. YH Vyas, learned advocate for Mr. DK Acharya, learned advocate for deceased

defendant, states that the defendant is desirous to approach the higher forum and urges that to enable the defendant to approach the higher forum

judgment rendered by this Court restoring the trial court''s decree may be stayed for a period of six weeks.

The prayer made by Mr. Vyas, learned advocate for the deceased defendant, has been opposed by Mr. RB Soni, learned advocate for the

plaintiff. According to him, the suit for taking accounts of the partnership firm was filed way back in the year 1966 and almost 40 years took to

pass the final decree in favour of the plaintiff. Therefore, the bank guarantee of Rs.3,10,000/- which is lying with the trial court may be permitted to

be encashed by the trial court and give the said amount to the plaintiff. He, therefore, urged that the prayer made by the learned advocate of the

deceased defendant may be rejected.

This court has given anxious and considerate thought to the submissions of the learned advocates of the parties. There is no dispute to the fact

that the suit for taking accounts of the partnership firm was filed by the plaintiff way back in the year 1966. After passing of the preliminary decree,

the parties have litigated upto the Supreme Court. After passing of the final decree also the defendant has come up to this Court and this court after

considering all the questions raised by the learned advocate of the defendant, has confirmed the final decree passed by the trial court and therefore

according to this court, after about 40 years the plaintiff must be permitted to execute the said decree. Therefore, the prayer made by Mr. YH

Vyas, learned advocate on behalf of Mr. DK Acharya, learned advocate of the deceased defendant, cannot be granted and hence the same is

rejected.