AMIT MINES PRIVATE LIMITED Vs. MAITHAN ALLOYS LIMITED

JUDGEMENT

(1.) In this revisional application as filed under Article 227 of the Constitution of India the Order no. 162 dtd. 12/9/2022 as passed in Title Suit No. 32 of 2008 by the learned Civil Judge, Senior Division, 1st Court at Assansol has been assailed. By the impugned order learned trial court while disposing an application dtd. 6/4/2019 (original application dtd. 4/2/2015 and as amended vide order dtd. 12/9/2009 by the self same court) as filed by the defendant with a prayer for setting aside the ex parte report as submitted by the Accounts Commissioner on 6/1/2015 with a further prayer for fixing another date of commission for holding a fresh accounts commission has been disposed by directing that the commission's report so submitted would again be reconsidered in presence of both the sides taking into account any point or contention raised by the defendant before the Accounts Commissioner on two specified dates. The defendant of the said suit felt aggrieved and thus preferred the instant revisional application.

(2.) Mr. Mitra, learned Senior Advocate appearing on behalf of the defendant/petitioner at the very outset took me to the list of dates as filed by the defendant/petitioner. Attention of this Court is also drawn to the plaint as filed in Title Suit no. 32 of 2008 before the learned trial court as well as to the preliminary decree as passed against his client. It is contended by Mr. Mitra that though in the preliminary decree learned trial court while appointing an accounts commissioner directed that the said accounts commissioner shall have to proceed to prepare his report after giving due information to both the sides but from the facts as involved in the lis as pending before the learned trial court it would reveal that the said accounts commissioner completed his work of commission and submitted his report before the learned trial court without serving any notice upon the defendant/petitioner and thus violated the provisions of Order 26 of the Code of Civil Procedure as well as the mandate of the learned trial court.

(3.) Drawing attention to the provisions of Order 26 Rules 12 and 18 of the said Code, it is argued that though the learned trial court while passing the impugned order was satisfied that the present defendant/ petitioner was not served with notice of commission, the learned trial court instead of proceeding under the provisions of Order 26 Rule 12(2) of the said Code i.e. instead of directing further enquiry by way of commission afresh, kept the ex parte repot of the commission pending and further directed that the said commission's report be again reconsidered in presence of both the sides taking into account any point of contention raised by the defendant. Mr. Mitra, Learned Senior Advocate for the defendant/petitioner in course of his argument also draws attention of this Court to the photocopy of the commission's report as submitted before the learned trial court as well as to the impugned order. It is submitted by Mr. Mitra that on bare perusal of the said report it would reveal that the said report is cryptic one which ought to have been set aside by the learned trial court on the basis of reasoning as given by the learned trial court in the self same impugned order. It is further argued on behalf of the defendant/petitioner that though the learned trial court while passing the impugned order was fully satisfied that there exists a good number of points of dissatisfaction in the said commissioner's report as already submitted by the learned commissioner, but the learned trial court for the reason best known to him instead of proceeding under the provision of Order 26 Rule12(2) of the Code of Civil Procedure passed a clumsy order which tantamounts to violation of proper dispensation of justice and thereby caused serious miscarriage of justice which should be rectified by this Court in exercise of its power under Article 227 of the Constitution of India.