JASRAJ INDER SJNGH Vs. HEMRAJ MULTANCHAND

JUDGEMENT

(1.) The two appeals, measured by their legal merits or factual dimensions may not justify their longevity from June 23, 1949 to February 1977 - the former being the date of birth of the suit and the latter the termination, at long last, of the cases in this Court. The subject-matter is a relatively small money claim which perhaps is less than the amount each side has spent on the forensic scrimmage. Before we narrate the facts and discuss the law, we may permit ourselves a pensive reflection about our processual justice. If we (law-makers and lawyers) tarry any longer to forge a speedy and radical jurisprudence of remedies-in-action, the long quest for the fruits of rights may tempt suitors into the traditional quagmire of processual legalistics where from extrication may prove an expensive futility. The story which hopefully comes to a close with this judgment, among many others like this, bears testimony to the crying need for serious reform - not oblique by-pass - of the court system by an aware legislature, lest the considerable social cost of pursuing judicial remedies stultify and disenchant seekers of legal justice. The facts, when unfolded, will validate this obiter intended to alert the law-maker.

(2.) The High Court, thanks to the then rule of valuation under Article 133 (1) (a) of the Constitution, granted a certificate of fitness. The appellant-plaintiff, as kartha of a joint Hindu family, was running a business in the name and style of Jasraj Inder Singh with two shops, one in Khamgaon and the other in Bombay. (The trade name for the Bombay Shop was slightly different.) The respondent-defendant had been having dealings with the plaintiff at both places between October 1947 and May 1948. The accounts between the parties fluctuated from time to time, since deposits, advances, withdrawals and entrustment of silver, castor, cotton and the like for sale as agents and crediting the prices in the accounts were a running feature of the mutual dealings. The plaintiff isolated the transactions which took place in Khamgaon and brought a suit claiming a sum of Rs. 11,401-7-9 which represented the net balance due on the Khamgaon khata to him from the defendant on May 12, 1948. Interest was also demanded on an alleged agreed rate. It is noteworthy that the plaintiff's initial folly, as Shri Desai, for the appellant. frankly admitted, was in excluding from the suit claim the amounts due one way or the other from the Bombay branch of the business. The contracting parties were identical, the dealings were similar and on any fair basis either could get from the other the net amount legally due from both the shops together. But legal sense and commonsense were abandoned by the plaintiff out of the oblique motive of claiming a larger sum than would be due in case a joint balance was struck. This dubious device, as will be seen presently, has backlashed on the plaintiff whose disaster in the High Court has been largely courted by this motivated cleverness. To revert to the litigative narrative, the defendant urged in defence that the demand was untenable since he had deposited six bars of silver with the Khamgaon shop of the plaintiff to be sold through his Bombay branch and if the sale proceeds thereof were taken into account in the Khamgaon khata a larger sum would be due to him. (We bypass, for the time being, the fight over this claim being a set-off under Order VIII, Rule 6, C. P. C., or a counter-claim in the nature of a substantive relief for the balance). This counter-claim was met by the plaintiff in additional pleading wherein he urged that the sale of silver bars was a matter for the Bombay shop and should not be mixed up with the Khamgaor dealings which were the basis of the action. What falls for regrettable comment is that even at this stage the plaintiff did not invoke the obvious argument that the Khamgaon and the Bombay shops both belonged to the same owner and since the transactions were between the same parties (in different places though) when a suit for (or on) final accounts were filed, all the items in the twin places should figure in the resultant decree. If this, straight-forward plea were taken the facts tend to show the plaintiff would still have got a decree, maybe for a lesser sum. Often times, obdurate legal obscurantism of litigants leads to protraction of proceedings, projection of intricate procedural punctilios and the phyrric processual victory forensically won being a potent source of perverting truth, draining resources and undoing justice. This sombre scenario of the case we are deciding proves how on account of the correct curial approach being blinded by the cantankerousness of the plaintiff, conveniently concurred in by the other side, revision and appeal, remand and appeal and attendant decades of delay and disproportionate litigative spending by both and two friendly businessmen, thanks to this feud, turning into foes, followed at once a disaster to both and detriment to the business community. And some pre-trial conciliation activism by the court at an early stage might well have sorted out the dispute, bettered their relations and pre-empted this cock-fight. Doing justice is a noble behest which blesses all; deciding the lis within a judicative pyramid provocative of appeals and revisions, bleeds both and unwittingly incites the bitter persistence in the struggle to win (and lose!). We are courts of justice guided by law and the signature tune of the Judicature is Fiat Justitia. We gently suggested, in this spirit, whether the parties would be disposed to compose their quarrel. Counsel, as often happens, constructively helped, but the purchase of peace at this late stage was difficult and we gave up. Of course, adjudication on the law and the facts cannot and shall not be influenced by this extra-curial excursion.

(3.) We pick up the story of the suit where we left it. In the dog-fight that followed, a question of court-fee was raised and decided. That was taken up to the High Court and returned. A preliminary decree for accounts of the Bombay khata was passed and that too leapt to the High Court resulting in a remand, fresh issues and so on. Then a decree was passed and both sides challenged it in appeal and cross-objections and the last lap of the tiring race is this court where the vanquished plaintiff is the appellant. We proceed to decode the justice and the law of the cause.