C KANNI CHETTI Vs. KOTAH RAJU CHETTY

JUDGEMENT

(1.) This is an appeal from a decree on the Original Side whereby the plaintiff's suit was dismissed and a decree was given against him in favour of the defendant for a certain sum of money. The plaintiff, has brought this appeal. To understand the plaintiff's complaint, it is necessary to mention the facts. He brought the suit as a suit for accounts against the defendant who was his commission agent. That suit was referred by the learned Judge before whom it came on for hearing to the Official Referee to take accounts without deciding any question, raised in it. The case was heard at considerable length before the Official Referee ; when it was pending before the Official Referee, the plaintiff made an attempt to have certain questions raised for determination by the Official Referee brought into Court and decided by Court, but his application did not succeed. The Official Referee made his report in due course after taking all the evidence available and tendered. The plaintiff filed no objections to the report in time. He asked the learned Judge sitting on the Original Side to grant further time to file his objections. But the learned Judge in his discretion refused that application. The result of it was that the report of the Official Referee was unchallenged by the plaintiff and the learned Judge passed a decree which is now under appeal before us.

(2.) The point taken by the appellant (plaintiff) is that the Court had no jurisdiction to refer the whole of his suit to the Official Referee, but should have decided certain questions arising in the case itself. The Official Referee has set out the points for determination in his report. They are five in number and marked as A to E in the report. It is conceded that D relating to taking accounts was properly before the Official Referee, but it is argued that points A, B and C should not have been referred to the Official Referee. Points A and B are as follows: (a) An enquiry as to whether 250 cases of cutch consigned by the plaintiff to the 1 defendant contain cutch of the quality mentioned in the plaint viz., Mimbu quality; (b) An enquiry as to whether the said cases delivered to the 1 defendant contained or bore the marks referred to in the plaint.

(3.) The dispute was as regards 250 cases of cutch which the plaintiff had sent to the defendant. The defendant did not dispute his having received the cutch nor his liability to account for the cutch. His case was that he could not sell them and that the goods were still available to be returned to the plaintiff subject to the lien which he had for money advanced on such cutch to the plaintiff, The plaintiff then tried to make out that the cutch which the 1st defendant was willing to return was not the same cutch that he had sent but some substitute of a lower quality. This matter was enquired into by the Official Referee and found against the plaintiff. It is con- tended that this is not a question which could have properly been referred to the Official Referee.