049-NLR-NLR-V-51-SENEVIRATNE-Appellant-and-KARIYAWASAM-Respondent.pdf
20fiNAGA1.IKGAM J.—Seneviratnc r. Kariawasam
1949Present; Nagalingam and Windham JJ.
SENEV1RATNE, Appellant, and KARIAWASAM, Respondent
S. C, 11—D. C. Kandy, 2,770
Civil Procedure Code—Examination of accounts—Apj/omtment of Commissioner—Right to summon witnesses—Suction 430.
Plaintiff and defendant jointly bought an estate and dofondant wasplaced in charge of it. Plaintiff sued dofondant for an account. Defen-dant tendered to Court two sets of accounts duly audited- Plaintiffapplied to Court for a Commission to a firm of accountants to examineand report on the accounts and his application was allowed. TheCommissioner so appointed wanted the attendance at his office of thedefendant aud his accountant and plaintiff applied to Court for asummons on them. The Judge directed summons to issue.
held, that the Commissioner was not one appointed undor section 430of the Civil Procedure Code aud that the issue of summons was notjustified in law.
■/.PFEAL from a judgment of the District Judge, Kandy.
M.11. A. Azeezy for defendant appellant.
Cyril E. S. Perera, with L. G. Weeramuttry, for plaintiff respondent.
Cur. adv. mil.
April 12, 1049. Naoalinoam J.—
The facts which give rise to this appeal may be shortly stated as follows :The plaintiff and tho defendant purchased jointly certain landed propertyknown as “ St. Martin’s Group ” and the defendant was placed incharge of it as Superintendent to work and manage the estate. Theplaintiff alleging that the defendant had not tendered accounts institutedthis action to compel the defendant to render an account and on thebasis of that account to compel him to pay such sums as may be founddue to the plaintiff. The plaintiff also claimed damages on the basisof mismanagement of the estate by the defendant. The defendantalleged that the accounts for part of the period had already been tenderedand that for the remaining period accounts were under preparation by afirm of Chartered Accountants and that he was willing to pay the plaintiffany sum that may be lawfully due to him. He also denied that theplaintiff was entitled to any damages on the ground of mismanagementof the property.
At the date of trial the defendant tendered to Court two sets of accountscovering the period during which he was in charge of the estate andwhich were duly audited. Plaintiff’s counsel thereupon mode applicationto Court that the accounts tendered as well as the books of accountand connected papers kept by the defendant •' be forwarded with a
207
NAGALINGAM .7-—Senwiratne v. Kariavjatam
Commission to Mr. H. L. Pope of the firm of Messrs. Pope & Co., Account-ants, for examination and report thereon Plaintiff’s counsel furthersaid that he reserved to the plaintiff the right to file objection to theaudited accounts after the receipt of Mr. Pope’s report. Defendant’scounsel consented to the application and Commission was issued toMr. Pope.
Mr. Pope apparently met with difficulty in understanding the accountstendered and wTote to the firm of Messrs. Satchithananda, Schokman &de Silva, the Chartered Accountants who had prepared the accounts,for assistance in investigating the accounts and requesting that theclerk of the firm who was engaged in the work may be directedto attend his office so that he may go through the accounts with him.To this letter Messrs. Satchithananda, Schokman & de Silva replied thatthe accounts were perfectly understandable without any assistance ontheir part. Mr. Pope also wrote to the dofendant to attend his officeand explain the accounts but the defendant sent no reply and did notattend. The plaintiff' thereupon applied to Court for summons to issueon Messrs. Satchithananda, Schokman & de Silva and the defendantdirecting their attendance at Mr. Pope’s office. Notwithstanding thedefendant’s objection, the learned Judge directed summons to issne.The appeal is taken from that order.
The order of the learned District Judge hAs been sought to be supportedby reference to section 430 of the Civil Procedure Code which empowersthat “ in any action in which an examination or adjustment of accountsis necessary, tbo court may issue a commission to such person as itthinks fit, directing him to make such examination. ” The first pointto bo emphasized is that a Commission under section 430 can only issuewhere an examination or adjustment of accounts is deemed necessaryand that must moan, deemed necessary by Court, (not by one of theparties), as for instance, where the Court before entering a decree in apartnership action (section 202 of the Civil Procedure Code) or in anaction for an accounting of pecuniary transaction between principaland agent (section 203 of the Code) considers it essential that the accountsor disputed items of accounts should be examined to facilitate it inentering up the decree. The corresponding section under the IndianProcedure, Order 26 Rule 11 has been interpreted in this sense: SeeBharatchandra r. Kiranchandra1. The normal procedure in an actionfor accounting would be for the party called upon to account to file hisaccounts and for the plaintiff then to file his objections to those accountsand the Court would next have to investigate the objections so filed.If the Court finds that the objections cannot be dealt with convenientlyand that it will be more expeditious that an investigation should bemade by an accountant to assist it in determining the liability of thedefendant, the Court would then be entitled under section 430 to issuea Commission.
In this case it would be seen from what has been said before that thecase did not reach such a stage that the Court did require the assistanceof an accountant to determine the liability of the defendant. In fact
1 A, I.B. 1925 Cal, 2060.
208
NAOALINGAM J.—Sr.ntviralne, v. Kariawatam
tho application for a Commission was to enable the plaintiff to have theaccounts looked into with a view to formulating his objections to them.Although the term “ Commission ” was used, one can quite understandwhy it was used, though not in the sense in which the term has beenused in section 430 of the Civil Procedure Code. On the defendanttendering bis accounts, the plaintiff would have been entitled to examinethe documents and he could examine them only in the Court premises.It may have been inconvenient for bulky accounts to be examined atlength in the Courthouse, and the application for the Commission cannotbut be regarded merely as an application for an authority of Court toenable the documents to be removed from tho Court and to be examinedin the more congenial surroundings of an accountant’s office. TheCommissioner so appointed would not properly be a Commissionerwithin the meaning of section 430 of the Civil Procedure Code but merelya witness with facilities provided for formulating objections, if any,to the accounts filed. The terms of the Commission are explicit and leaveno room for doubt as to the nature of the authority conferred on theCommissioner. They only direct the Commissioner to examine theaccounts and make a report. The Commission does not empower theCommissioner to examine the parties or witnesses.
It has, however, been contended that under section 434, a Commissionerappointed to investigate accounts has the power to examine the partiesand witnesses. But this section appears in a part of the Chapter headed“ General Provisions ” and is intended primarily to apply to Commissionsfor the examination of parties and witnesses in terras of sections 420,422, &c. Section 436 is a section that throws light on the constructionto be placed on section 434. That section provides that when a Commis-sion is issued under this Chapter the Court shall direct the parties to thoaction to appear before the Commissioner in person or by their recognisedagents or Proctors, dearly indicating that where the Commissioner isrequired to examine parties the Court would give a direction to thateffect to tho parties. The absence of such a direction in the Commissionmust be regarded as an implied indication by Court that it withholdsirom the Commissioner the powTer to examine parties or witnesses evenif section 434 be deemed to apply to a Commission to examine accountsand that the Court intends to avail itself of the exception created bythe section by the use of the words, “ unless otherwise directed by theorder of appointment ”.
The defendant contends that he would not have agreed to a Commis-sion being issued to Mr. Pope had it been suggested that Mr. Pope was toexamine parties or witnesses. Tho consequences of construing the Com-mission in the way the learned District Judge has done would be, to putit at the lowest, most unsatisfactory. The effect would be to enable awitness of the plaintiff to interrogate the defendant and his witnessesin regard to the defence even before the Court could pronounce its viewson the nature of the defence. Even a Commissioner whose appointmentunder section 430 has been duly made has been held to be not in theposition of a Judge or arbitrator. See Tin Gowri Devi v. Sotto Dowel1,
> 6C.L. J. m.
N AGALINGAM J.— VedinSinghov. Mency Nona
which case is not available to me but a reference to it is found in Sarkar’sCommentary on the Indian Civil Procedure Code1. In a case reportedin All India Reporter*, where the Court appointed a Commission toinvestigate and to report on the profits arising from certain propertymortgaged, it was held that the Commissioner was not entitled to takeevidence as to the possession of the property by any of the parties or theextent of that possession.
For the foregoing reasons the conclusion I reach is that Mr. Popewas not appointed a Commissioner within the meaning of section 430of the Civil Procedure Code and that tho order directing the defendantand his witnesses to appear before him was not justified in law. Itherefore set aside the order of the learned District Judge. The defendantwill have the costs of appeal and of the argument in the lower Court.
WntDHAM J.—I agree.Appeal allowed.