Case: Soni Dineshbhai Manilal  Vs. Jagjivan Mulchand Chokshi

Appellants in both the appeals are before us, aggrieved by and dis-sastisfied with the judgment and order dated 6th April, 2005 passed by a learned Single Judge of the High Court of Gujarat in Second Appeal No.37 ofthe purpose of determining the question involved in these appeals, Soni Dineshbhai Manilal and others are being referred to as the appellants, while Jagjivan Mulchand Chokshi is being referred to as thefather and the respondent were partners of a partnership firm known as ‘Bhagyoday EngineeringA decision was taken to dissolve the said firm. A deed of dissolution was entered into on the 9th day of September, 1965. A suit for dissolution of the partnership firm and accounts was filed by the respondent herein, inter alia on the premise of the existing dispute in regard to shares of the parties in the said partnershipsuit was dismissed on 29th July, 1975. However, the appeal preferred there against was allowed holding that the respondent-plaintiff was entitled to 56 % shares, whereas the father of the appellants was entitled to 44 % share. A decree was also passed for accounts for the period 19th January, 1960 and 9th September, 1965. Father of the appellants filed a second appeal before the High Court which was partly allowed, whereby the shares of the parties were determined at 50 % each. The said decree was affirmed by this Court by its order dated 25th February,application was thereafter filed for initiation of a final decree proceedings. A Court Commissioner was appointed for taking accounts. The Commissioner submitted his report on 13th August, 1986. Objection thereto was filed by the father of the appellants. An application was also filed for permission to cross-examine the Court Commissioner. The same was rejected. A civil revision application was filed by the father of the appellants which was dismissed by an order dated 22nd Aril, 1996, statingD.K. Acharya, learned Advocate for the petitioner seeks leave to withdraw the Civil Revision Application. Leave granted. Rejected as withdrawn.It is, however, clarified that the petitioner-defendant would be entitled to prove or disprove the accounts that may be submitted by the parties with regard to the partnershipapplication was also filed by the father of the appellants before the trial court to allow a Chartered Accountant to verify the records and, accounts books. The said prayer was alsoan order dated 2nd May, 1997 the trial court rejected the objections of the appellants opininginto consideration, the submissions, replies and evidences of both the sides, Civil Court had rejected the said suit and against the said order, Appeal No. 79 of 1975 was being admitted in the District Court. The appellate Court had quashed the order of the civil Court and share of the Plaintiff was decided and it was ordered in respect of accounts to appoint the Court Commissioner for taking accounts. Thereafter in theHigh Court and in theSupreme Court, the said matter was filed and thereafter to draw final decree the same matter was adjourned.In the said case, being kept for hearing on the debated point in respect of legal question, but both he parties were given proper time and reasonable opportunity, even though, their rights were closed as there was no submissions.In the said case,Report at Mark 44/1, which was being admitted in evidence according to provisions of Order 2-G Rule 11, 12, which was taken on record by Exh. 124 for taking into consideration for evidence. In the said case, the record andreport which were produced before me, being taken into consideration and if determined as per law, thereport and the finding which were given by taking into account the fact, are found reasonable and when said report was given by the defendant by violating the provisions of existing law, have been failed to prove the same, in that circumstances, it is found that it is reasonable and just to give sanction to the details of the report of Court Commissioner. So taking into consideration the facts and documentary evidence produced, I pass the following order in the interest ofappeal preferred there against, however, was allowed by an order dated 11th December, 1997. Cross-objection was filed by the respondent therein and while rejecting the said cross-objection, the first appellate court observedcross objections Ex.11 filed by the respondent plaintiff are hereby rejected. However, the learned trial Judge is directed to allow the said party to agitate the question regarding interest and the same be decided as perfiled a second appeal there against which has been allowed by reason of the impugned judgment.

Reasoning:
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 ].