HUKAM CHAND GAPPULAL PARWAR Vs. MOHAMMADJI ABDULJI MUSALMAN

JUDGEMENT

(1.) THIS was a suit for rendition of accounts filed by the respondent-plaintiff, who is a piece-goods merchant at Sohagpur, against the appellants-defendants, who conduct a similar kind of business at Hoshangabad. The plaintiff claimed that accounts should be taken on the dealings between the two shops on the basis that the defendants sold certain goods belonging to him in the capacity of a commission agent. Out of the pleadings a large number of issues of fact arose, such as the relationship which subsisted between the parties, the rate of commission agreed upon, the value of the goods despatched by the plaintiff, the expenses of consignment, who sold the goods whether the plaintiff or defendants, what was sold by them etc., etc. The Court proceeded to hear evidence on these issues, and without passing any preliminary decree for accounts, came to the conclusion that a sum of Rs. 2754-9-0 was due to the plaintiff, to whom accordingly he gave a decree for that amount. In the lower Appellate Court the trial Court's findings of fact were challenged, and the learned District Judge confirmed them and dismissed the appeal. In second appeal, although as many as 15 grounds have been set out in the memorandum, the only question of law that arises and was argued is found in two grounds, Nos. 13 and 14: 13. In the circumstances of the case and on the lower Appellate Court's own conclusions it was act competent to the lower Appellate Court to override the imperative provisions of Order 20, Rule 16, Civil P.C, and dispense with the making of the preliminary decree. 14. The lower Appellate Court similarly failed to see that even on its own conclusions the defendants could not be held liable for payment of a definite sum without accounts being taken ; and the course adopted by the lower Appellate Court was not only illegal but unjust.

(2.) THAT question can be cast in the form: "Is it imperative, in view of the provisions of Order 20, Rule 16 of Schedule 2, Civil P.C., this feeing a suit for accounts, that a preliminary decree should be passed?" The appellants contend that if this had been done most of the questions which have been decided by the Court would have arisen after the passing of the preliminary decree. Reliance was placed on the words in Order 20, Rule 16 "the Court shall, before passing a final decree, pass a preliminary decree" directing such account to be taken. It is said that the word "shall" shows that the rule is mandatory: Hurrinath Rai v. Krishna Kumar Bakshi (1887) 14 Cal 147 and Jai Krishna v. New Mofussil Co. AIR 1926 Nag 393. The same point was raised before the lower Appellate Court, and the learned District Judge has discussed it in para. 6 of his judgment where relying upon Bharatchandra v. Kiranchandra (1925) 12 AIR Cal 1069 and Pandurang v. Gunwantrao AIR 1928 Nag 299 he concludes that it is not necessary in this case to pass a preliminary decree. We are of opinion that the learned District Judge is correct, although the cases which he has cited are not very apposite. Bharatchandra v. Kiranchandra (1925) 12 AIR Cal 1069 is scarcely to the point at all, while Pandurang v. Gunwantrao AIR 1928 Nag 299 is not of much assistance because the learned Additional Judicial Commissioner considered that the procedure of the Court in not passing a preliminary decree might have been wrong but that it did not matter when nobody had been prejudiced. Taking first the plain wording of Order 20, Rule 16, although the expression "shall pass a preliminary decree" is used, there are two clear qualifications to it: (1) the rule says: "Where it is necessary...that an account should be taken" and (2) that the Court is to direct "such account to be taken as it thinks fit." Accordingly, where it is not necessary the Court need not pass a preliminary decree and the words "such account to be taken as it thinks fit" obviously mean that the Court need not order any account to be taken unless it thinks fit. In Hurrinath Rai v. Krishna Kumar Bakshi (1887) 14 Cal 147 their Lordships of the Privy Council were careful to point but that they were not to be understood to be laying it down that a preliminary decree was to be passed in every suit for an account. In their own words at page 158: Their Lordships are not expressing an opinion that in a suit for account, it may not appear at the hearing that the issue is so simple and so clearly raised, and met by evidence, as to be ready for decision at that time. But the general rule is the other way.

(3.) THE question therefore resolves itself into this, whether the facts in the present case are so simple as not to require the passing of a preliminary decree, or whether they are too complicated for the Court to deal with without passing such a decree. It would be impossible to draw a hard and fast line between cases which are simple and cases which are complicated. In our opinion, this is a case where it was not necessary to have a preliminary decree. The matters in controversy could be and were dealt with at one and the same time without injustice to anyone. The other matters which were at issue in the lower Courts do not, in our opinion, arise in second appeal being points of pure fact. The appeal accordingly fails and is dismissed with costs. Counsel's fee fixed at Rs. 25.