Soni Dineshbhai Manilal And Others vs Jagjivan Mulchand Chokshi

JUDGMENT (Arising out of SLP (C) NO. 19295 OF 2005) WITH CIVIL APPEAL NO. 5946 OF 2007 (Arising out of SLP (C) NO. 7818 OF 2006) Jagjivan Mulchand Chokshi . Appellant Versus Soni Dineshbhai Manilal and others .. Respondents S.B. SINHA, J.

3. For the 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 the respondent.

4. Appellants father and the respondent were partners of a partnership firm known as Bhagyoday Engineering Company. A 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 partnership firm.

5. The suit was dismissed on 29th July, 1975. However, the appeal preferred thereagainst 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, 1994.

6. An 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, stating :-

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 the appeals fail and are dismissed. However, in the facts and circumstances of the case there shall be no order as to costs.