HON'BLE SRI JUSTICE M.VENKATA RAMANA
SECOND APPEAL No. 1143 of 1999
JUDGMENT:
The appellant was the plaintiff in O.S.No.503 of 1980 on the file of the Court of the learned II Additional Subordinate Judge (Senior Civil Judge), Vijayawada. The respondents were the defendants.
2. The appellant laid the suit for dissolution of the 6th respondent firm and for rendition of accounts. On contest, a preliminary decree was passed in this suit on 20.07.1982 declaring that the appellant is entitled to 15% of the profits of the 6th respondent among other directions.
3. A commissioner was appointed directing to determine this 15% share of the profits of the 6th respondent by the trial Court when passing the preliminary decree.
4. It appears, an application to pass a final decree was filed by the appellant in terms of the preliminary decree. A judgment was passed on 31.07.1986 by the trial Court, without referring to such proceedings being related to passing a final decree. The learned commissioner reported that the appellant did not co-operate in execution of the warrant and acting upon the same it was confirmed. The trial Court further held that the contention of the respondents that the accounts were already settled, who need not pay any amount to the appellant, is acceptable. Thus, by the judgment dated 31.07.1986 the trial Court held accordingly.
5. In appeal in A.S.No.36 of 1989 on the file of the Court of the learned II Additional District Judge, Krishna at Vijayawada, the same was confirmed, while also considering the plea of the respondents that the 2 MVR,J S.A.No.1143 of 1999 claim of the appellant was adjusted outside the Court, under an agreement dated 21.12.1986 between the appellant and the respondents.
6. Questioning these observations and findings, the appellant has presented this second appeal.
7. Heard Sri V.S.Prasad, learned counsel, for Sri Y.Nagaiah, learned counsel for the appellant and Sri Sai Gangadhar Chamarthy, learned counsel for the 4th respondent.
8. This second appeal was admitted on the substantial questions of law set out in ground No.16 of the memorandum of appeal of the appellant.
9. These substantial questions predominantly relate to nature of judgment of the trial Court as well as the appellate Court, meeting the requirements of Section 2(8) CPC and maintainability of I.A.No.2177 of 1996 filed in the appeal by the respondents for recording adjustment of the preliminary decree under the alleged agreement dated 21.12.1996. Related question is in respect of bar of time in recording such adjustment by the appellate Court. They also relate to the failure of the appellate Court in remanding the matter to the trial Court for fresh consideration and failure to exercise jurisdiction therefor.
10. As seen from the judgment of the trial Court dated 31.07.1986, there is no indication that the learned trial Judge was considering the matter as a final decree petition filed pursuant to preliminary decree dated 20.07.1982. The dissolution of the 6th respondent firm came into effect on 3 MVR,J S.A.No.1143 of 1999 31.07.1980 and the preliminary decree directed ascertainment profits payable to the appellant at 15%, by the above date.
11. The trial Court completely acted upon the report of the commissioner who expressed his inability to execute the warrant and determine quantum of profits payable to the appellant pursuant to the preliminary decree. The complaint that the appellant did not cooperate in execution of the warrant, was apparently on account of the involvement of the learned counsel appearing for him at that stage in an accident and who was undergoing treatment. In such circumstances, when there is already declaration of entitlement of the profits in favour of the appellant, the learned commissioner could have waited for some more time before returning the warrant on such premise.
12. The trial Court is not justified in the above circumstances in accepting the report of the learned commissioner. Considering that part of the so called judgment of the trial Court in accepting the version of the respondents that the claim of the appellant in this respect was already settled, without there being any opportunity to any of the parties to lead evidence in that respect or place material, recording such findings by the trial Court is completely uncalled for. The whole approach of the trial Court in this context is highly improper.
13. The trial Court did not address the whole matter bearing in mind that it was a final decree application which it was deciding and went on considering the matter as if its judgment was an extension to the preliminary decree.
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14. It is unfortunate that the learned appellate Judge chose to accept the findings of the learned trial Judge. On this score even the judgment of the appellate Court suffers the same malady.
15. In the course of appeal, a petition was filed for recording adjustment outside the Court of the claim of the appellant in I.A.No.2177 of 1996 under Section 151 CPC. This alleged adjustment is based on an agreement entered into among these parties on 21.12.1986. It is on record that the appellant resisted such claim of the respondents and sought to explain the circumstances under which he was made to sign in that agreement.
16. However, the learned appellate judge chose to consider that the appellant had admitted his signature in this agreement and its terms and conditions. No opportunity was given to the appellant to lead any evidence in that context. However, the appellate Court held that the appellant did not place any material in support of such contention in opposing the above petition. Further observation of the learned appellate Judge is that till the aforestated agreement is set aside by any competent Authority or Court, it is binding on the appellant. Basing on its terms, the learned appellate Judge further observed that the appellant cannot continue the proceedings in the appeal and that the respondents are authorized to get them terminated lawfully.
17. Without inviting the parties to let-in evidence in this respect and more particularly without considering the question of limitation applicable in such circumstances in getting an adjustment recorded, of 5 MVR,J S.A.No.1143 of 1999 satisfaction of the preliminary decree in favour of the appellant, the learned appellate Judge is not right in recording these observations.
18. As rightly contended for the appellant, the course for the appellate Court having regard to the nature of the so-called judgment of the trial Court was to remand the matter for fresh consideration. Instead the appellate Court erroneously chose to support the judgment of the trial Court and the reasons stated therein.
19. Therefore, in these circumstances, since the approach of both the Courts below is not in legally tenable terms, that grossly erred in drawing such conclusions and inferences, it is now required for this Court to interfere. This course is required in the interests of justice.
20. The course now left is to remand this matter to the trial Court for fresh consideration of the pleas of the appellant, giving opportunity to all the parties and to decide the matter afresh. Though this case is more than two decades old, this Court has no other option in the circumstances to direct likewise, which step is required to set right the situation.
21. In the result, the second appeal is allowed and the decree and judgment of the appellate Court and in turn that of the trial Court stand set aside. The matter is remanded to the trial Court for fresh consideration in all respects and in accordance with law. It shall not be influenced by earlier proceedings and shall decide independently on the material. The trial Court shall issue notice to the parties concerned give them an opportunity to be heard, to lead evidence if any and dispose of the matter in accordance with law preferably within a period of six (06) months. The trial Court is directed to appoint a commissioner afresh for 6 MVR,J S.A.No.1143 of 1999 the purpose required in terms of the preliminary decree dated 20.07.1982 and shall follow the directions therein towards rendition of accounts of the respondent no.6. Thereafter the share payable to the appellant shall be arrived at. No costs.
As a sequel, pending miscellaneous petitions, if any, stand closed. Interim Orders, if any, stand vacated.
_________________________ JUSTICE M.VENKATA RAMANNA Dt:03.12.2021 RR 7 MVR,J S.A.No.1143 of 1999 HON'BLE SRI JUSTICE M.VENKATA RAMANA SECOND APPEAL No.1143 of 1999 Dt:03.12.2021 RR