9911796707
TMI Blog1977 (2) TMI 125X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which such fee was payable. Later, issues were framed by the trial Court which reflected the, integrated nature of the dealings between the two parties in the shops at Khamgaon and Bombay. The learned District Judge, not obsessed by the wrong-headed pleadings, took the view that the shops, though located at different places, were owned by the same family and the claims were so inter-connected that, in equity and law. set off was permissible and the net sum due to the plaintiff-less than what he had sued for-should be decreed. We may mention the relevant issues framed at the first round even here since we may have to refer to them later when dealing with a supportive submission of Shri Phadke for the defendant. Issues 5 and 7 may be reproduced here :- 5 . Whether the Bombay Khamgaon shops owned by plaintiff's partners are so connected with each other that a composite account of the entries in the two shops can be made by the Defendants? XX XX 7 . Whether on making an account of the two shops of the Plaintiff of Bombay and Khamgaon, the Defendants are entitled to a set-off thereafter to a sum of: (a) ₹ 17000/- as claimed by the Defendants or to a set off. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether such amount was due to the defendants from plaintiff. If such amount was found due to the defendants from the plaintiff, then the defendants would be entitled to set off that amount as against the claim of the plaintiff. The decree as passed by the learned lower Court will, therefore, have to be set aside. It is necessary for the trial Court to decide as to what amount was due to the defendants from the plaintiff. The issue was framed and parties have led evidence. The lower Court shall decide the issues left undecided for final decree. The learned lower Court will decide whether it is proved on the facts that the defendants have to recover ₹ 17000/- from the plaintiff, and if so found, will adjust the eventual liability inter se, and if it is found that any of the parties has to recover any amount from the other, a decree should be accordingly passed. The case is, therefore, sent back to the trial Court who will decide as to what amount is due to the defendants from the plaintiff. Thereafter whatever amount is found due to the defendants shall be adjusted towards the proved claim of the plaintiff in respect of the deposits in the Khamgaon shop. The Court shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bt the correctness of any of the entries in these extracts of plaintiff's account book (Exht. P-23), I answer issues 5(a) and (b) in the affirmative. Ex. P. 23 contains on the credit side the sale proceeds of defendant's silver which was sold in Bombay.' A plea had been feebly raised by the defendants that some of the items in the Bombay account were barred by limitation and the plain tiff could not claim credit for them. This plea was also examined by the trial Court and negatived with the observation : 'I hold that in view of the credit and debit entries in Ex. P. 23 all. the debit entries were within time at the material period. I answer issue 5(c) in the affirmative.' Thus there was no denial of fairness in the trial because the Bombay accounts in their entirety were put in issue, and focused on by both sides in the evidence followed by appropriate findings. The upshot of this process was, in the language of the trial Court : 'Thus all things considered plaintiff is entitled to ₹ 12, 000/- minus ₹ 4535/12/- i.e., ₹ 7,464/4/ from the defendants'. The court denied costs to both since neither came with clean hands. Both sides were g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder an illegal decree had been passed in favour of the plaintiff. What was the misapprehension about? While directing a remand, the High Court ordered that issue' 6 should be decided by the trial Court and this issue has been set out earlier by us. Naturally, the trial Court took the view that the High Court, having ordered an adjudication of issue learned Counsel 6, vested it with the jurisdiction to enquire into the Bombay accounts in toto and pass the decree that we have already indicated, viz., a deduction of the surplus due to the defendant from the Bombay accounts from the amount due to the plaintiff from the defendant according to the Khamgaon accounts. The arithmetic is not in dispute and, indeed, while both the counsel have taken us through the evidence in the case we are satisfied that if both the Khamgaon and the Bombay accounts had to be gone into, the decree passed was correct both regarding the quantum and on the issue of limitation. This we affirm because Shri Phadke had feebly pressed before us that in any case his client should be given a fresh opportunity to make out his case regarding the various entries in the Bombay katha. We are not satisfied that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the strength of the Khamgaon accounts while he owes the defendant ₹ 50,000/- according to the Bombay accounts. Order 8, Rule 6, C.P.C. deals with a specific situation and does not prevent the Court where the facts call for wider relief from looking into the accounts in both places to do ultimate justice between the parties. Procedure is the handmaid and not the mistress of justice and, in this spirit, the trial Court's adjudication cannot be faulted. Be that as it may, in an appeal against the High Court's finding, the Supreme Court is not bound by what the High Court might have held in its remand order. It is true that a subordinate court is bound by the direction of the High Court. It is equally true that the same High Court, hearing the matter on a second occasion or any other court of co-ordinate authority hearing the matter cannot discard the earlier holding, but a finding in a remand order cannot bind a higher Court when it comes up in appeal before it. This is the correct view of the law, although Shri Phadke controverted it, without reliance on any authority. Nor did Shri S.T. Desai, who asserted this proposition, which we regard as correct, cite any prec ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
