Decided on July 28,1944

Harjiwandas C. Parikh And Anr. Appellant


Mockett, Offg. C.J. - (1.) DEFENDANTS 3 and 4 are the appellants and the plaintiff the respondent. There is a long family history relating to these parties which it is unnecessary to discuss. A decree of Gentle J. dated 4th October 1940 provided inter alia that a partnership, the subject -matter of the suit, should stand dissolved as and from 20th March 1936 and that the suit should be referred to the Official Referee to take the following accounts: (a) an account of the credits, property and effects belonging to the partnership; (b) an account of the debts and liabilities of the partnership; and, (c) an account of the dealings and transactions between the said partners from 29th November 1931 to 20th March 1930. There was an appeal against the judgment and decree of Gentle J., and it is sufficient to say that by a judgment dated 9th August 1943 the appeal against the judgment of Gentle J. was dismissed by 'the Chief Justice and Lakshmana Rao J. The result therefore was that the decree of Gentle J. having been confirmed, the matter went to the Official Referee to be dealt with in the terms of the decree. The Official Referee heard the matter and it will be seen that in dealing with the subject -matter of the reference he had to consider some complicated questions of law apart from pure questions of accountancy and arithmetic. After numerous hearings his report was finally signed on 5th January 1942 and in due course it came before our learned brother Bell J. on 25th January 1943. It appears from the learned Judge's judgment - and this is confirmed by learned counsel who now appear before us that a contest took place before the learned Judge with regard to the objections and cross -objections filed by the respective parties. The judgment of the learned Judge was as follows: I am obliged for being referred to the case in Manicka Mudaliar v. Andalammal, A.I.R. 1940 Mad. 573 which shows so clearly the scope and limits of the Official Referee's duties. In this case the judgment of Gentle J. and his findings are in my respectful view clearly unequivocal. His directions as to what the Official Referee was to do appear to admit of no doubt whatever. Being so guided the Official Referee has investigated the matter and I think there were enough materials before him on which he could come to a conclusion. I think he was entitled on that material to come to the various conclusions he did. The objections have been very fully and very well argued by counsel for the respective parties but on the whole I do not think that they are sustainable or should be sustained. I am not satisfied that the Official Referee either was wrong in his method of approach to the matters as to which he was asked to inquire or in the conclusions to which he came. It would appear therefore that the learned' Judge took the view that unless it could be shown that there was no evidence before the Official Referee or that he had dealt with the case in some manner apparently wrong or illegal, no attack could be made upon his find -lings. It is true, as those who had experience of the Original Side 20 years ago know, that there was at one time an idea in that Court that findings of fact of the Official Referee1 could not be attacked unless it could be shown that they were based on no evidence. That view however has long ceased to obtain and it is quite clear that a finding of the Official Referee can be attacked just as any other finding can be attacked. This has been emphatically stated by Venkatasubba Rao Offg. C.J. and Venkataramana Rao J. in Order S.A. NO. 61 of 1934. The attention of Bell J. was not drawn to this judgment. The case, Manicka Mudaliar v. Andalammal, A.I.R. 1940 Mad. 573 to which the learned Judge referred, as he rightly observed, deals with the scope and limits of the Official Referee's duties: but nowhere can any authority be found for the proposition that his findings when within that scope and according to that duty cannot be attacked in appeal as any other finding. The extent to which a Court in fact would interfere in matters of accounts is of course according to the view which the individual Judge takes.
(2.) IN this case however we have before us an appeal which involves the investigation into questions of fact. The learned Judge while confirming the Official Referee's report has unfortunately given no reasons except as above stated. Consequently this appeal is actually before us as an appeal direct from the Official Referee and the judgment which we should give would be the judgment which should be given by the Original Side Judge. Twenty of the thirty grounds of appeal before us are directed to the Official Referee's report. The view we generally take on this matter is that for however long a time it was actually heard it has never been decided. We have no alternative except to allow this appeal by setting aside the judgment of the learned Judge and directing the whole matter to go back to the original side to be heard and decided on the merits with reasons for the findings. The costs of this appeal will be in the discretion of the learned Judge who finally hears the reference from the Official Referee. As this matter has been considerably delayed already, we have no doubt that the Original Side Judge will give it his earliest attention. The court -fee on the appeal will be refunded. The payment of Rs. 300 a month to the respondent will continue until the decree of the Original Side Judge.;

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