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Civil Appeal No.42 of 1983, decided on 18th March, 1987.

---S.96 & O.XX, R.16--Sind Chief Court Rules, S.125--Suit for settle ment of account--Appeal arising from a civil suit filed by respondent for settlement of accounts of a work of emergent repairs to High Way awarded to him by appellant (Province)--Preliminary decree was passed in suit and a Commissioner was appointed for taking accounts who submitted his report whereby claim of respondent against appellant to a certain sum was upheld--Trial Court setting aside report and ordering that another Commissioner having technical knowledge be appointed with consent of parties--Respondent filing appeal against said order before District Judge who set aside order of trial Court to the extent of appointment of another Commissioner--- Trial Court construing such order of District Judge as a direction that final decree be prepared in accordance with report of Commissioner, trial Court prepared final decree accordingly--District Judge in fact had remanded case for referring it back to Commissioner for rectification of deficiencies in his report and compliance of Rules 125 of Sind Chief Court Rules and for submitting a fresh report--Held, Trial Court was in error in construing order of District Judge as a direction for preparing final decree--Final decree passed by trial Court was set aside by High Court in appeal and case remanded to trial Court to refer it back to Commissioner for fresh report in the light of observations made by District Judge.

P L D 1979 Lah.857; 1981 C L C 1148; P L D 1979 S C 821; 1983 C L C 286; 1980 S C M R 711; P L D 1973 Kar.117 and P L D 1972 Kar.108 ref.

Abdul Saeed Khan Ghori for Appellants.

S.Abdul Rahman for Respondent.

This appeal u/s.96, C.P.C. has arisen from a Civil Suit No.20/77 filed in the Court of Civil Judge, Sukkur by the respondent Muhammad Hussain for settlement of accounts of a work of emergent repairs to Pak High Way from Mile Nos.302/0-303/0, 306/307, 315-316/7, 323/0-325/0 awarded to him by the Government of Sind in the year 1965-66. A preliminary decree for settlement of accounts was passed by judgment dated 15-11-1979 and Mr.Gulzar Hussain Shah Advocate was appointed as Commissioner for taking the accounts and submitting report within three months after receiving the Sanad. The Commissioner submitted his report on 28-2-1981, whereby he upheld the claim of the respondent against the appellant Government to the tune of' Rs.1,00,500. His report was set aside by the trial Judge by order dated 2-1-1982 and it was ordered that another Commissioner having technical knowledge be appointed with the consent of the parties. This order was appealed against by the respondent in Misc. Civil Appeal No.70/82 before the .District Judge Sukkur who, by his order dated 22-6-1982 set aside the order of the lower Court and remanded the case for necessary compliance by making following observations:-

"The order of the learned lower court for appointment of the other Commissioner is not justifiable who happens to be the subordinate of respondent No.2. There is however, no need of a technical man for handling the accounts. If at all the report of the Commissioner did not find favour with the court the lower court could have again remanded it back to the Commissioner for amending the report after giving opportunity to the other party, and for compliance of Rule 25 of the Sind Civil Court Rules. The observations made by the lower court to any particular reference to the report of the Commissioner and the appointment of a subordinate engineer of respondent No.2 are in no way justifiable."

The learned Trial Judge made following order dated 25-10-1982 for giving effect to the order made by the District Judge.

"Heard learned A.G.P. and Plaintiff's counsel. By consent in compliance of directions contained with judgment of appellate court dated 22-6-1982, the matter is referred back to same Commissioner for taking accounts and other compliance after giving opportunity to the defendants of representing their case. All the papers be sent to Commissioner. Put off to 28-12-1982 for returning of Commissioner's report."

The above order also was appealed against by the respondent in Misc. Civil Appeal No. 70/82 before the District Judge Sukkur who, by his order dated 17-2-1983 set aside the order of the trial Court and remanded the case to the trial Judge for compliance of the order of the predecessor Judge dated 22-6-1982. Consequent to this order, the Trial Judge passed following order on 31-3-1983:

"The Plaintiff filed the suit for accounts against the defendants. The suit was decreed preliminarily by my predecessor. Thereafter, Commissioner was appointed. Commissioner submitted the report. Objections were called on report. Defendant filed the objections. My predecessor after hearing parties counsel set aside report and ordered for appointment of another Commissioner and in that order reference was made to certain items viz. items 1, 10 and 8 of the claim put by the plaintiff and according to my predecessor the same should not have teen considered. This order was challenged in appeal and honourable District Judge was pleased to order that there is no need of appointment of another Commissioner and the order was set aside and direction was given that compliance be made. After remand another order was passed by predecessor and this order was also challenged in appeal and honourable District Judge was pleased to set aside the order and directions were made for compliance of previous order of Hon'ble Judge. The perusal of the orders of Hon'ble District Judge show that the only compliance was to be made was the preparation of the final decree. This becomes clear from the first order para 4. The operative part reads as under:

As such the net result was that the report of Commissioner was final and compliance by way of preparation of final decree was to be made.

In last order there are directions for compliance of order and it is clear that the compliance to be made is given above. From the perusal of the above order it is clear that order of appointment of the new Commissioner is set aside and the objections regarding items 1, 10 and 8 is also overruled. The result is that final decree is to be prepared as per report of the Commissioner. Let final decree be framed. The plaintiff D.H. is directed to pay the deficit court-fee of Rs.3,272.50 as suit is decreed for Rs.1,00,500 and plaintiff have valued the suit tentatively at Rs.200 and paid court-fee stamp of Rs.15 only. The deficit court-fee stamp be paid within 2 weeks from today and then final decree be prepared. The last date for payment of deficit is 14-4-1983."

Thereafter, final decree for the payment of Rs.1,00,500 to the respondent was prepared on 27-4-1983. This appeal is directed against this final decree and the preceding orders referred to above.

During the pendency of the appeal, an application a/s 3 of the Limitation Act r/w Section 97, C.P.C. (C.M.A. No.21/84) was filed for dismissal of the appeal on the ground that it was time-barred. That application was dismissed by order dated 21-5-1984.

The learned counsel for the parties have made their submissions. Mr. Abdul Saeed Khan Advocate for the appellants has contended that the suit was decreed ex parte as well as the Commissioner submitted his report ex parte and appellants objections against the Commissioner's report were upheld by the learned Trial Judge by the order dated 2-1-1982 and the Commissioner's report was set aside and it was ordered that another Commissioner may be appointed. He has further contended that the order of Trial Judge was partly set aside as regards the appointment of another Commissioner by the District Judge, by order dated 22-6-1982 in appeal and further directions were given in respect of execution of commission. According to him the learned Trial Judge made an order dated 22-10-1982 for referring back the report to the Commissioner for fresh report in the light of the directions given by the Appellate Court but that order was challenged in appeal before the District Judge, who passed the order dated 17-2-1983 setting aside the order of Trial Judge dated 25-10-1982 and giving directions for giving effect to the earlier order dated 22-6-1982. The learned counsel has urged that this order of the District Judge dated 17-2-1983 was misconstrued .by the learned Trial Judge and, instead of referring the case back to the Commissioner, he made an order for preparation of final decree on the basis of the report of the Commissioner which was set aside earlier by order dated 2-1-1982. He also advanced following legal pleas:-

(1) The Commissioner's report was bad in law as it was submitted beyond the time of three months allowed for submission of his report.

(2) No appeal lay against the order of the District Judge dated 22-6-1982.

(3) The respondent's claim was over a lac of rupees and the District Judge did not have appellate jurisdiction.

(4) Suit for accounts did not lie in the case of contract.

(5) The suit was time-barred as the contract was entered into in 1965, final payment was made to the respondent in 1971 and the suit was filed in 1977.

(6) There was arbitration clause in the agreement and suit did not lie before availing of the arbitration clause.

(7) The matter should have been remanded to the Commissioner as per orders of the District Judge dated 22-6-1982 and 17-2-1983.

The learned counsel for the respondent has urged that the appeal was time-barred as the memo of appeal was presented on 6-8-1983 with meagre court-fee stamp of Rs.15 and the deficit court-fee was paid on 5-9-1983 by which time the statutory period for filing appeal had expired. He has placed reliance on the cases reported in P L D 1979 Lah.857; 1981 C L C 1148; P L D 1979 S C 821. He has next contended that the appeal is directed against the orders dated 14-4-1983, decree dated 27-4-1983, preliminary decree dated 15-11-1979 and other orders passed earlier which had become time-barred. He has relied upon a case reported in 1983 C L C 286 in support of his contention that a preliminary decree cannot be challenged in appeal filed against final decree. He has also contended that the final order of the Trial Court dated 31-3-1983 has not been challenged in appeal. He has relied upon a case reported in 1980 S C M R 711. He has next contended that the suit was filed on the valuation of Rs.200 and the amount of his claim was to be determined and therefore the District Judge did have. jurisdiction of appeal against the interlocutory orders and he has placed reliance on a case reported in P L D 1973 Kar.117.

The question of limitation agitated by the learned counsel for the respondent earlier under the provisions of Section 3 of the Limitation Act was rejected vide order dated 21-5-1984. The second objection of limitation is based on deficiency in the court-fee stamp. Of course, the memo, of appeal was presented with the court-fee " stamp of only Rs.15 but simultaneously an application a/s.149, C.P.C. (CMA 338/83) was filed for extension of time and the application was allowed subject to the question of limitation and rights of the respondent by order dated 5-9-1983. The deficit court-fee stamp was paid on 5-9-1983 and the period stood extended by the order of the court dated 5-9-1983. The late payment of deficit court-fee' was explained in the application. The case stands covered by the guidelines laid down by the Supreme Court in the case Mst.Vilayat Khatoon v. Khalil Khan and another P L D 1979 S C 821. The case relief upon by the learned counsel had distinguishing features and so also other two cases viz. P L D 1972 Kar.108 and P L D 1970 Kar.295 referred to in the case reported in 1981 C L C 1148.

The question of limitation agitated on the time limit arising from the dates of the orders, there is no doubt that the orders of the District Judge dated 22-6-1982 and 17-2-1983 had become time -barred by the time the appeal was preferred but the appeal is essentially directed against the decree dated 27-4-1983 and it has already been held by the order dated 21-5-1984 that the appeal against the final decree was in time.

The final decree impugned in this appeal is based on Commissioner's report dated 28-2-1981 which was set aside by the learned. Trial Judge by order dated 2-1-1982. This order was partly set aside by the District Judge by order dated 22-6-1982 to the extent of appointment of another Commissioner. The learned Trial Judge referred the matter back to the Commissioner by order dated 25-10-1982 but this order was challenged in appeal before the District Judge and the earlier order of the District Judge dated 22-6-1986 was amplified in the order passed on 17-2-1983. The learned trial Judge construed this order dated 17-3-1983 as a direction that final decree may be prepared in accordance with the report of the Commissioner and the final decree was prepared accordingly. It appears from the order of the District Judge dated 22-6-1982 that the matter was remanded for referring the matter back td the Commissioner for rectification of the deficiencies in his report and compliance of the provisions of Rule 125 of the Sind Civil Court Rules. The second order of District Judge dated 17-2-1983 (not by the same Judge but by the successor Judge) also was in effect of the same nature and the matter should have been referred back to the Commissioner for submitting fresh report as directed. The learned trial Judge was in error in considering that the order dated 12-2-1983 by the District Judge was a direction for preparing final decree. Accordingly, the appeal is allowed, the final decree dated 27-4-1983 is set aside and the matter is remanded to the trial Court to refer the case back to the Commissioner for fresh report in the light of the observations made by the District Judge in his order dated 22-6-1982. The parties shall bear their own costs.

The suit was filed as far back as in the year 1977. The trial Court shall direct the Commissioner to complete the proceedings within three months after receipt of the order by him and the trial Judge shall then pass appropriate orders on the report of the Commissioner in accordance with law within three months.

M. Y. H./P-35/K Case remanded.

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