Case: Soni Dineshbhai Manilal  Vs. Jagjivan Mulchand Chokshi

on 29th April, 1995. However, an observation was made by the trial court that the ‘averments are fabricated with bad intention by the defendant and that the delay may be caused for recovery of decretal amount’. Another objection filed by the respondent was rejected by a very detailed order dated 31st January, 1996 not only taking into consideration the provisions of law but also the precedents operating in the field. Conduct of the parties had also been taken into consideration therein. The learned Judge also considered the nature of the objections raised, one of which, we may notice, is that the Commissioner was not an expert in accounts. It was pointed that no such objection was raised at the time of the appointment of the Commissioner. 17. Appellants’ principal grievance centers round the non-production of ‘ublak’ books which, as noticed hereinabove, had been dealt with in the earlier orders of the court. It was pointed out that the Commissioner had prepared a balance sheet inter alia on the basis of the purchase bills and the sales bills. 18. A civil revision application, as noticed hereinbefore, was filed against one of the orders, which was later withdrawn. It is accepted at the Bar that the other civil revision application was also withdrawn. 19. The High Court in its impugned judgment had taken the said facts into consideration. Order XXVI Rule 11 of the Code of Civil Procedure provides for appointment of a commissioner to examine or adjust accounts, if necessary. He is competent to decide all questions raised before him, taking into consideration all aspects of the matter. He is to assist the Court. A Commissioner’s report can be set aside only upon assignment of proper and sufficient reasons. In the event any defect in the conduct of enquiry by him is found out, the court may issue any further directions. A further enquiry can also be ordered. A report of the Commissioner is a part of the record. It is to be treated as evidence in the suit. 20. Rule 16 of Order XXVI of the Code of Civil Procedures provides for powers of the Commissioners which is in the following terms :- “16. Powers of Commissioners - Any Commissioner appointed under this Order may, unless otherwise directed by the order of appointment, -(a) examine the parties themselves and any witness whom they or any of them may produce, and any other person whom the Commissioner thinks proper to call upon to give evidence in the matter referred to him ;(b) call for and examine documents and other things relevant to the subject of inquiry ;(c) at any reasonable time enter upon or into any land or building mentioned in the order.” 21. Appellants’ father was, therefore, entitled to raise all the contentions in regard to non-production of books of accounts and other maters. It was also permissible for him to examine witnesses in support of his case before the Commissioner. It may be true that any order passed can be questioned in the grounds taken in the appeal against the final orders, but such interlocutory orders are required to be challenged. Nothing has been shown before us that such interlocutory orders and particularly those which are referred to hereinbefore had specifically been challenged in the Memorandum of Appeal but the said interlocutory orders were not subjected to revision. What is essential is that they should not have been appealed against. If a revision has been filed which is a part of the appellate jurisdiction, although stricto sensu, doctrine of merger may not apply but Section 105 of the Code of Civil Procedure also would not apply in such cases. Each of those orders attained finality. It has been held in Shankar Ramchandra Abhyankar vs, Krishnaji Dattatreya Bapat : AIR 1970 SC 1 , that civil revision is a part of appellate jurisdiction. 22. As noticed hereinbefore, before the Court, objections to the report of the Commissioner had been taken. Several orders were passed. There is nothing on record to show that the appellant intended to adduce any evidence in support of his case. In fact he was permitted to do so. 23. It may be true that in view of Rule 1(u) of Order XVIII a second appeal was not maintainable but the scope of an appeal under Section 100 of the Code of Civil Procedure is narrower. If the appeal had been entertained upon hearing both the parties, this Court may not exercise its extra ordinary jurisdiction to set aside that order, as what matters most is to see whether substantial justice has been done to the parties and not the technicalities involved therein. 24. In a given case the appellate court in exercise of its inherent jurisdiction can convert one type of appeal to the other. Forum for preferring a second appeal as also an appeal under Order XVIII Rule 1(u) is the same, namely the High Court. As the scope of an appeal under Order XVIII Rule 1(u) is wider than a second appeal, the appellants on their own showing are not prejudiced in any manner, if the High Court proceeded to consider the question involved in the appeal in its impugned judgment. 25. Even substantial questions of law were framed and the same have been answered. We, however, although agree that technically a second appeal was not maintainable from one part of the judgment, keeping in view of the fact that the matter is pending for more than 40 years and in view of the nature of the dispute as also the quantum of amount involved, we are of the opinion that it is not a fit case where we should exercise our discretionary jurisdiction under Article 136 of the Constitution of India. It is now well settled that this Court may decline to exercise its jurisdiction, although it would be lawful to do so. [See Management, Pandiyan Roadways Corporation Ltd. vs. N. Balakrishnan : 2007 (7) SCALE 758 ].26. In the above circumstances both

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]In a given case the appellate court in exercise of its inherent jurisdiction can convert one type of appeal to the other. Forum for preferring a second appeal as also an appeal under Order XVIII Rule 1(u) is the same, namely the High Court. As the scope of an appeal under Order XVIII Rule 1(u) is wider than a second appeal, the appellants on their own showing are not prejudiced in any manner, if the High Court proceeded to consider the question involved in the appeal in its impugnedsubstantial questions of law were framed and the same have been answered. We, however, although agree that technically a second appeal was not maintainable from one part of the judgment, keeping in view of the fact that the matter is pending for more than 40 years and in view of the nature of the dispute as also the quantum of amount involved, we are of the opinion that it is not a fit case where we should exercise our discretionary jurisdiction under Article 136 of the Constitution of India. It is now well settled that this Court may decline to exercise its jurisdiction, although it would be lawful to do so. [See Management, Pandiyan Roadways Corporation Ltd. vs. N. Balakrishnan : 2007 (7) SCALE 758 ].