A point has been raised in this revisional application whether an application under Order 26, Rule 11 & 12 of the Code of Civil Procedure deserves to be dismissed having taken out after commencement of trial on the premise that it would drag and delay the disposal of the suit. In other words, it is sought to be contended that if the application for appointment of the account commissioner is taken out at the peremptory stage of the proceeding, there is quite justification in the judgement of the Trial Court in rejecting the said application on the ground of delay.
2. The suit for recovery of money on account of damages and the counter-claim for recovery of unpaid amount under the agreement are filed. Both the parties have claimed against each other and the nature of the claim is recovery of an amount on their independent cause of action.
3. Admittedly the suit, which was instituted way back in the year 2007, was posted at the peremptory board, but the examination of the witnesses has not commenced as yet. An application for appointment of the account commissioner was taken out by the plaintiff/petitioner on various grounds including that the documents, which are voluminous in nature, are required to be examined in order to ascertain its credibility, worthiness and sustainability thereof.
4. The defendants/opposite parties contested the said application by filing written objection contending that such application should be dismissed, as it is not a fit case where the Court should appoint the account commissioner for such purpose.
5. There are two limbs in the impugned order; the first limb contains the findings on the application under Order 12, Rule 6 of the Code for passing a judgement on admission, which was rejected by the Trial Court. The second limb of the same contains the findings recorded by the Trial Court on an application under Order 26, Rule 11 & 12 of the Code, which was also dismissed.
6. Both the learned advocates for the parties are uniform in their stand that there is no challenge to the first limb of the order, by which an application under Order 12, Rule 6 of the Code is rejected.
7. This Court, therefore, is examining the second limb of the impugned order, by which an application for appointment of the account commissioner is rejected by the Trial Court.
8. The Trial Court while rejecting the said application observes that the suit, which was instituted in the year 2007, has reached the stage of peremptory hearing and the irregularities pointed out by the plaintiff in the bills submitted by the defendants can very well be put to the witness of the defendants and such irregularities and discrepancies can also be pointed out at the stage of argument.
9. According to the petitioner such finding is contrary to the spirit of the provisions contained under XXVI Rule 11 of the Code and, therefore, such part of the order impugned is liable to be set aside.
10. On the other hand, the opposite parties say that the Court should not proceed to allow the application under the aforesaid provision simply on the ipsi dixit of the statements made in the application and there is no illegality or infirmity in rejecting the said application, if the Court found that such application is filed only to delay and drag the proceeding.
11. The reliance is placed upon a Division Bench judgement of this Court in case of Bharat Chandra Chakrabarty v. Kiran Chandra Rai reported in AIR 1925 Calcutta 1069in support of the proposition that if there was no protest or objection raised at the time of submission of bills by the plaintiff, such plaintiff did not deserve to have the account commissioner appointed for the purpose of verifying the claim of the defendants. It is further submitted by the opposite parties that the Division Bench further held that as such objection has not been raised, the suit is non-maintainable.
12. Upon careful reading the decision taken in the said Report, this Court finds that the suit was filed by the principal for accounts against the agent not only on the ground of fraud, but also on material error. The suit was dismissed by the Trial Court and such decree was carried to the first Appellate Court, who reversed the said decision and passed a preliminary decree for accounts for the period for which the claim was laid in the suit. An argument was sought to be advanced that once the defendants have submitted all the papers, it was the duty of the plaintiff to arrange the same and ascertain whether there is any claim of such surcharge and the ground of falsity.
13. The Division Bench noticed the distinction between the suit at the instance of the principal for accounts on an allegation that the agent has not rendered the accounts and a suit for accounts with an additional prayer to have them reopened or to have liberty to surcharge and falsify on the ground of fraud and material error. Bearing in mind the nature of the suit it was held that if a suit for accounts is for the purpose of reopening of the same to ascertain the liberty of surcharge and falsity on fraud or otherwise, it is the plaintiff, who has to satisfy the moment the claim was launched to him, he has to verify and must raise objection at the threshold and such object cannot be achieved at a later stage of the suit by seeking an appointment of account commissioner and to have it verified.
14. The Division Bench, in my opinion, have further succinctly held that the legality and falsity of the claim is within the domain of the Court and cannot be entrusted upon the commissioner.
15. The aforesaid observations was made keeping in mind the provisions under Order 20, Rule 16 of the Code, which provides the mechanism to be followed while passing a decree.
16. This is a suit simpliciter for recovery of money on account of damages. The aforesaid principle cannot be extended to a suit of such nature, as each judgement decides what emerges from the facts involved therein and a little difference in facts may invite the opposite decision.
17. This Court does not find that the ratio laid down in the aforesaid judgement of the Division Bench cited by the opposite parties can be of any assistance on the points indicated herein above.
18. The language employed under Order 26, Rule 11 of the Code of Civil Procedure indicates that the Court may issue a commission to any person as it thinks fit directing him to examine or adjust the accounts, if the same is necessary. It is essentially a satisfaction of the Court whether the commission of such nature is necessary and unless such satisfaction is recorded, the Court should not proceed to allow the application in a routine or casual manner.
19. The said provision never contemplates that the application should have been made at the nebulous stage of the suit or at any stage subsequent thereto; meaning thereby that certain restrictions are imposed on a party applying for appointment of the commissioner at the matured or final stage of the suit.
20. It ambits no ambiguity to say that the delay in taking out an application of such nature cannot be the sole factor for rejection thereof. The discretion has been vested upon the Court to be exercised even if such application is taken out at the stage of peremptory hearing that the same is necessary.
21. Such being the requirement under the aforesaid provision, this Court is unable to subscribe the view taken by the Trial Court that once the application of such type is taken out at the stage of peremptory hearing, it signifies the intention of the plaintiff in dragging and delaying the proceeding.
22. Strangely enough the Trial Court in a preceding paragraph observes that there are certain discrepancies and irregularities in the bills; yet proceeded to observe that such discrepancies and irregularities can be pointed out to the witness and an argument can be advanced in this regard.
23. This Court finds that the Trial Court has not recorded the necessary findings required under the aforesaid provisions and have simply proceeded that such application is intended for delayed disposal of the suit.
24. This Court, therefore, set aside the second l
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imb of the impugned order, by which the application under XXVI Rule 11 & 12 of the Code is rejected. The first limb of the impugned order is uninterfered with, as no challenge is thrown by either of the parties. 25. The Trial Court is directed to reconsider the said application on merit in the light of the observations recorded herein above and shall dispose of the same within two weeks from the date of the communication of this order by providing proper reasons.26. Nothing in this order shall be construed to have any impact on the merit of the said application and the Trial Court shall be free to decide the same without being influenced thereby. 27. The revisional application is thus disposed of. 28. There will be no order as to costs. 29. Urgent photostat certified copy of this order, if applied for, be given to the party within three days from the date of application.