KALE KHAN MOHD HANIF Vs. MOHD IQBAL

JUDGEMENT

(1.) IN this intra-court appeal, the defensibility and legal tenability of the order dated 5-4-2007 passed by the learned single Judge in W. P. No. 1443 of 2007 is called in question.

(2.) THE facts which are imperative to be uncurtained are that the respondent invoked the extra-ordinary jurisdiction of this Court under Art. 227 of the Constitution of India questioning the propriety of the order dated 2-1-2007, Annex. P-21, to the writ petition passed by the learned Additional District judge, Bhopal in R. C. S. No. 127 of 2005 whereby he had rejected the report of the commissioner dated 6-12-2006 appointed for valuation of the trade mark and prayed for issue of a writ of certiorari for quashment of the same. Additionally, it was prayed that a command should be issued to the trial court to take into account the report for preparing the final decree.

(3.) AS discernible from the material documents brought on record and the asseverations setforth in the writ petition, the respondent decree-holder was the partner in the partnership firm, namely, Kalekhan mohammad Hanif Khan which was engaged in the manufacture of bidis. In the said firm, the writ petitioner as well as Mohd. Hanif khan and Mohd. Aziz, the respondents 1 and 2, and late Mohd. Islam, the real brothers, were the main partners. The remaining partners were the sons of three brothers. The firm was dissolved on 16-1-1986. On a civil action being initiated, the learned Additional district Judge, Bhopal, by judgment dated 4-11-1996, granted a preliminary decree of dissolution of the firm with effect from 17-1-1986 and directed that action be taken through the Commissioner for the purpose of passing a final decree. Pursuant to the preliminary decree, one R. K. Mangal, Chartered Accountant, was appointed as the commissioner for settling the account of the dissolved firm. He submitted the report, annex. R-5 to the writ petition, on 23-7-2001 before the trial Court. In his report, he valued the goodwill of the firm at Rs. 1,80,56,859/- and expressed the view that as the valuation of the trade mark was a technical matter for which valuers were not available, the matter should be referred to a trade mark valuer for its valuation. While the Commissioner was examined in Court, he deposed in his cross-examination that since he had not valued the trade mark, his report was incomplete. The trial Court, as is evincible, by order dated 31-1-2005, annex, P. l1 to the writ petition, expressed the view that the report of the Commissioner did not contain the valuation of the trade mark and was, therefore, incomplete and directed the writ petitioner to initiate a proceeding for valuation of the trade mark. The said order was not assailed by the present appellants who were the respondents in the writ Court. As is evident, on the basis of an application filed by the writ petitioner, the trial Court appointed Sanjeev Nifat Kar and associates, which in its report dated 6-12-2006, Annex. P-12, valued the trade mark of the firm at Rs. 20,77,589. 90.