# ~-. ,_ ' ' JASRAJ INDER SINGH v. HEM RAJ MULTAN CHAND

- **Citation:** [1977] 2 S.C.R. 973
- **Court:** Supreme Court of India
- **Decided:** 1977-02-14
- **Case number:** Civil Appeals Nos. 2208, 2209 of 1968
- **Bench:** V. R. Krishna' Iyer, A. C. Gupta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jasraj-inder-singh-v-hem-raj-multan-chand-7132
- **Pages:** 11

## Headnote

973
Parfllership Act-Rendition of accounts-Plaintiff had two shops at different
places-Defendant had dealings at both p/aces--Plaintiff claimed account of
one shop wit/1out set off from the other-If set off permissible.
Jurisdiction of High Court-Remand order-Na/lire of-Lower Court, if
bound by directions in remand order.
The appellant (Plaintiff) had two shops, one in his village and the other in
a city.
The respondent (defendant) had dealings of various kinds with the
appellant at both the places.
The plaintiff filed a suit claiming a certain sum
representing the net balance due to him from the respondent (defendant) on the
village account.
The defendant on the other hand claimed that, had the city
account been taken into account, it was he who would be entitled to a larger
sum from the plaintiff.
The plaintiff claimed that the accounts of the village
and city should not be mixed up.
The trial Court held that, though the shoP§
were located at different places, they were owned by the same person and iii
equity and law, set off was permissible and it accordingly granted a decree.
On the plaii{tiff's appeal, the High Court held that rendition of city accounts
was illegal and remanded the case to the trial Court.
On remand, the
trial
Court held that while the plaintiff was right in his demand vis-a-vis the villa,ge
·shop, the defendant was entitled to a certain sum from the city account and
awarded a decree to the plaintiff in respect of the net balance.
A
B
c
D
In appeal, the High Court held that after remand the trial Court had
no
E
jurisdiction to look into the city accounts as a whole and on account of a misapprehension of the observations of the remand order, an illegal decree had
been passed in favour of the p\aintiff.
Restoring the trial Court's order,
HELD : The true nature of the action in this case was a suit on account fo
the sum due on striking a balance. That itself was the cause of action. [98 lE]
1. The trial Court's view that the entirety of account in the two shops could
be viewed as a composite one, was sound.
The parties are the same.
There
was only one person who owned the two shops and it is wrong to construe the
situation as if there were two juristic entities. The defendant who dealt with the
plaintiff in the two shops was . the same person. The dealings were either in one
or the other shop. The artificial dissection of the transactions could not square
up with the reality of the situation.
[981C-DJ
In the instant case there was no misapprehension on the part of the trial
Court of the observations made by the High Court in its remand order.
While
directing remand, the High Court ordered that issue No. 6, namely, whether on
making an account of the two shops of the plaintiff the defendants were entitled
to a set off and thereafter to certain sums, should be decided by the trial Court.
The trial Court naturally tQOk the view that the High Court having ordered an
adjudication of th~ issue, vested it with jurisdiction to enquire into the
city
accounts in toto and pass a de'cree. If the village and city accounts had to be
gone into, the decree passed was correct.
[980G-H]
2. Order 8, !}lie 6 CPC 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.
[981-HJ
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SUPREME COURT REPORTS
[1977] 2 s.c.R.
3: (a~ After rema1_1d by the High Court, the subordinate Court is bound by
the direction .of the High Court, the same High Court hearing the matter on a
11econd occas10n or any other Court of co-ordinate authority hearing the matter,
cl!-nnot d~scard the earlier holding.
Both a finding in a remand order cannot
bmd a higher Court when it comes in appeal before it.
(982A-BJ
(b) The remand ord~r by the High Court is a finding at an intermediate
stage of the same litigation. When it came to the trial Court and escalated tit
the Hi&h Court, it ren_iained the same litigati

## Text

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JASRAJ INDER SINGH
v.
HEM RAJ MULTAN CHAND
February 14, 1977
(V. R. KRISHNA' IYER AND A. C. GUPTA, JJ.J
973
Parfllership Act-Rendition of accounts-Plaintiff had two shops at different
places-Defendant had dealings at both p/aces--Plaintiff claimed account of
one shop wit/1out set off from the other-If set off permissible.
Jurisdiction of High Court-Remand order-Na/lire of-Lower Court, if
bound by directions in remand order.
The appellant (Plaintiff) had two shops, one in his village and the other in
a city.
The respondent (defendant) had dealings of various kinds with the
appellant at both the places.
The plaintiff filed a suit claiming a certain sum
representing the net balance due to him from the respondent (defendant) on the
village account.
The defendant on the other hand claimed that, had the city
account been taken into account, it was he who would be entitled to a larger
sum from the plaintiff.
The plaintiff claimed that the accounts of the village
and city should not be mixed up.
The trial Court held that, though the shoP§
were located at different places, they were owned by the same person and iii
equity and law, set off was permissible and it accordingly granted a decree.
On the plaii{tiff's appeal, the High Court held that rendition of city accounts
was illegal and remanded the case to the trial Court.
On remand, the
trial
Court held that while the plaintiff was right in his demand vis-a-vis the villa,ge
·shop, the defendant was entitled to a certain sum from the city account and
awarded a decree to the plaintiff in respect of the net balance.
A
B
c
D
In appeal, the High Court held that after remand the trial Court had
no
E
jurisdiction to look into the city accounts as a whole and on account of a misapprehension of the observations of the remand order, an illegal decree had
been passed in favour of the p\aintiff.
Restoring the trial Court's order,
HELD : The true nature of the action in this case was a suit on account fo
the sum due on striking a balance. That itself was the cause of action. [98 lE]
1. The trial Court's view that the entirety of account in the two shops could
be viewed as a composite one, was sound.
The parties are the same.
There
was only one person who owned the two shops and it is wrong to construe the
situation as if there were two juristic entities. The defendant who dealt with the
plaintiff in the two shops was . the same person. The dealings were either in one
or the other shop. The artificial dissection of the transactions could not square
up with the reality of the situation.
[981C-DJ
In the instant case there was no misapprehension on the part of the trial
Court of the observations made by the High Court in its remand order.
While
directing remand, the High Court ordered that issue No. 6, namely, whether on
making an account of the two shops of the plaintiff the defendants were entitled
to a set off and thereafter to certain sums, should be decided by the trial Court.
The trial Court naturally tQOk the view that the High Court having ordered an
adjudication of th~ issue, vested it with jurisdiction to enquire into the
city
accounts in toto and pass a de'cree. If the village and city accounts had to be
gone into, the decree passed was correct.
[980G-H]
2. Order 8, !}lie 6 CPC 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.
[981-HJ
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SUPREME COURT REPORTS
[1977] 2 s.c.R.
3: (a~ After rema1_1d by the High Court, the subordinate Court is bound by
the direction .of the High Court, the same High Court hearing the matter on a
11econd occas10n or any other Court of co-ordinate authority hearing the matter,
cl!-nnot d~scard the earlier holding.
Both a finding in a remand order cannot
bmd a higher Court when it comes in appeal before it.
(982A-BJ
(b) The remand ord~r by the High Court is a finding at an intermediate
stage of the same litigation. When it came to the trial Court and escalated tit
the Hi&h Court, it ren_iained the same litigation. The appeal before the Supreme
Court is from the smt as a whole and, therefore, the entire subject matter is
available for adjudication before the Supreme Court. [982C-D]
( c) The circumstance that the remanding judgment of the High Court was
not appealed against, assuming that an appeal lay therefrom, cannot preclude
the appellant from challenging the correctness of the view taken by the High
Court in that judgment. [982E]
Lonankutty v. Thomman (1976] 3 S.C.C. 528, followed.
CIVIL APPELLATE JURISDICTION : Civil
Appeals
Nos.
2208,
2209 of 1968.
·
From the Judgment and Decree dated the
10th/11th August,
1965 of the Bombay High Court {Nagpur Bench) in First Appeal
Nos. 120 and 123 of 1965.
.
S. T. Desai, D. N. Mishra and B. N. Mohta, for the appellant.
M. N. Phadke, A. G. Ratnaparkhi, for respond~nt.
The Judgment of the Court was delivered by
KRISHNA IYER, J.-The two appeals, measured by
their legal
merits or factual dimensions, may not justify their longevity from
une 23, 1949 to February 1977-the former being the date of birth:
of the suit and the later 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 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 suitor"s 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 legi'slature, lest the considerable social cost
of ~usuing 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 Art,
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,
,
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JASRAJ INDl!ll SINGH v. HEM llAJ (Krishna Iyer, !.)
975
tme i~ Khamgaon and the other in Bombay. (The trade name for the
Bembay 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 credit~
ing 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
A
B
from the suit claim the. amounts due one way or the other from the c
Bombay branch of the business. The contracting parties were identi- ·
cal, 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 strus:k. 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 ~alance.). This counter-claim was met by the plaintiff
in an additional pleading wherein he urged that the sale of silver bars
was a matter for the Bomb.ay shop and should not be mixed up with the
Khamgaon dealings which were the basis of the action. What falls for
regrettable comment is that even at this stage the plaintii'I' 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) finaJ 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, may
be for a lesser sum.
Oftentimes, obdurate legal· obscruantism of litigants, leads to protraction of proceedings, projection of intricate pro-
'Ceclural punctilios and the phyrric processual victory forensically won
being a potent source of perverting truth, draining resources and un-
<loing 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
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the other side, revision and appeal, remand and appeal, and attendant
decades of delay and disproportionate litigative spending by both and: H
two friendly businessmen, thanks to this feud, turning into foes, follow-
. ed-at once a disaster to both and detriment to the busines~ community.
And -some pre-trial conciliation activism by the court at an
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976
•· · • .SUPREME COURT. REPORTS -
[1977] 2 §.,C.R.
early stage might well have sorted·out the dispute, bettered their rela·
tions and pre-empted this cock-fight. Doing justice is a noble bche~~
~hich blesses all; deciding the lis within a judicative pyramid, provo- ·
cative of appeals and revisions, bleeds both and unwittingly incites the.
bitter persistence in the struggle to win (and lose !) . · We are courts
bf justice guided by law and the signature tune of the indicature 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.
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 kbata 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 crossobjections 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.
.
We may state that the plaintiff's obstinate attitude in' treating the
Bombay shop and Khamgaon shop as two different persons each being
entitled to sue the defendant without reference to the amounts due to
the latter from the former in inter-connected business dealings is a
legal fallacy and cute perversity. However we may repeat that the
defendant also proceeded on that 'shop autonomy' theory but only
urged that the silver bars were wrongfully omitted from the Khamgaon
kbata. Shops are not persons although suits may be filed in trade
names. The trial court took a commonsense view in commingling the
business account of the same parties. This was good law. A plurality of shops owned by the same person does not proliferate into many
shop-persons. At an intermediate stage of the many involved interlocutory skirmishes, the plaintiff did allege :
"The alleged silver bars were sold by the
defendant
Suwalal through the said Bombay shop and naturally the sale
proceeds of that quantity of silver are credited in the defendant's Khata in the Bombay shop. · The plaintiff, therefore
in reply to the defendant's claim of Rs. 17000/- has to file
the extracts of accounts of the Bombay shop to put the full
picture of transactions before the court. As the Bombay
shop shows the balance of Rs. 4535-12-0 as due to the
defendants, the said fact has been so mentioned by the plaintiff in his statement."
·
In passing, we may mention that the counter-claim led to a demand
for court-fee and the High Court affirmed this order but reduced the
sum on .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 iii the shops at Khamgaon and Bombay. · The
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.. -:, '.fASRAJ.°iNDER SINGH" v •. HEM 11.AJ (Krishna Iyer, J.)
-ii77
learned . District Judge; not. obsessed. by. the wrong-headed pleadiIJ."i:s;·- A .
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 reproB
duced here :
·
· ·
"5. Whether the Bombay & Khamgaon shops owned hy
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 ?
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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) Rs. 17,000/- as claimed by the Defendants or to
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a set-of!.
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(b) Rs. 4,535-12-0 as stated by the Plaintiff ?"
Later, amended pleading's led to amended issues of which issues 4 to
6 are meaningful and are set out below with the findings _thereon;
K4. Whether the Bombay and Khamgaon shops owned by
plaintiff's partners are so connected with each other
E
that a composite account of the entries in two shops
can )le made by the defendants ? ·
-
Yes
5. (a) Whether a sum of Rs. 44,697 /10 is debited to the
defendants in the account of the Bombay shop ?-Yes
(b) Are these entries proper and correct ?
-Yes.
· (c) And in time?
-Yes.
Ci. Whether on making an account of the two shops of
. the plaintiff of Bombay and Khamga·on the defendants are entitled to. a set-off and thereafter to a
sum ofF
(a) Rs. 17,000/- as claimed by the defendants or to
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a set off
-No.
(b) Rs. 4,535/12/- as stated by the plaintiff ?-Yes.
The plain fact emerges that the two parties were having de3lings
with each other, that the dealings in Khamgaon and Bombay were
inter-related and not totally different transactions, d;ssociated in nature
and divorced in period.
The trlal judge treated the totality of tran-
. sactions as a composie ·account and the suit as one on accounts. He
granted a decree on these terms
H
978
SUPREM! COURT REPORTS
[1977] 2 s.c.R.
A
"The Plaintiff shall render an account of the Bombay shop
to the defendant, who shall be entitled to falsify and surcharge. A preliminary decree for accounts under order 20,
rule 16 CPC shall be drawn up.
After making an account
and the necessary adjustment, the ev6ntual liability 1inter se
shall be determined.
Costs shall abide the result."
B
The plaintiff appealed and the defendant filed cross-objections. After
a 'study of 0.8, r. 6 CPC, the High Court felt that the Bombay accounts
should not have been gone into and the defendant's claim by way of
set off alone was available for adjudication.
Since it had been held
that the silver bars were an item in the Khamgaon shop accounts, the
direction for rendition of the Bombay account was illegal. The Court
observed :
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"The learned lower Court was thus in error in converting
the claim of set off into a claim for rendering accounts by the
plaintiff to the defendants in respect of the dealings made in
the Bombay shop. The lower Court was bound in terms of
Order 8 Rule 6, to treat this claim of set off as a money claim
in respect of the ascertained amount and to find whether such
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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.
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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 1ssues left undecided for final decree. The learned lower Court will decide
whether it is proved on the facts that the defendants have to
recover Rs. 17,000/- 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 pas'sed. . .
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 Khamga?n shop.
The Court shall pass a decree in favour of the party m whose
favour the balance will be found due."
It is true that the High Court's observations inhibited the Bombay
accounts being generally reopened but when the case was re.m.and.ed
for fresh decision, the trial Court, apparently pressed by the miustice
of amputating the composite dealin~s, w~nt on to hold that while the
plaintiff was right in his demand vrs-a-v1s the Khamgaon Khata, the
defendant was cntit~ed to a sum of Rs. 4.535/12/- from the Bombay
accou~ts and awarded to the plaintiff a decree for the net balance of
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JASRAJ INDER SINGH v. HEM ll.AJ (Krishna Iyer, /.)
979
Rs. 7,464/4/-. This he did in purported compliance with the Hip
A
Court's direction. He wasi bound by it and to act contrary to a higher
court's on!er is to be subversive of the discipline that the rule of law
en joys in our hierarchical justice system. The trial Judge, in recording
findings on all the issues, did a comprehensive
investigation of the
Bombay accounts since the silver bars,
although entrusted to the
Khamgaon 8hop, were sold in Bombay and rightly credited in the
Bombay Khata.
B
To pick out a single true iteilJi which had been inextricably got enmeshed in the skein of entries and cross-entries was to tear up the fabric
of the whole truth. In a finer sense, harmony is the beautiful totality
of a whole sequence of notes and the concord of sweet sounds is .illtuned into disjointed discord if a note or two is unmusically cut and
played. Truth, like song, is whole and half-truth can be noise : Justice
i-: truth, is beauty and the strategy of healing injustice is discovery of
the whole truth and harmonising human relations.
Law's finest hour
is not in meditating on abstractions but in being the delivery agent of
full fairness.
This divagation is justified by the need to remind ourselves that the grammar of justice accord'ing to law is not little litigative
solution of isolated problems but resolving the
conflict in its wider
bearings.
Let us pick up the threads of the litigation.
Even the interrogatories served and the answers elicited made it clear that wh'ile there
were two shops in two different venues, the dealings between the plaintiff and the defendant were closely connected-rather, integrated. That
furnished the justification for the trial Judge to examine the Bombay
accounts between the parties and he came to the factual conclusion : 'I
see absolutely no reason to doubt the ccrrectness 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
plaintiff could not claim credit for them. 11ris 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 is'sue, and focused on by both
sides in the evidence followecd by appropriate findings.
The upshot
of this process was, in the language of the trial Court :
'Thus all
things considered plaintiff is entitled to Rs. 12,000/-
minus Rs.
4,535/12/- i.e., Rs. 7,464/4/- from the defendants'. The court denied
costs to both since neither came with clean hands.
Both sides were
guilty of not playing cricket and, in this game of over-reaching each
other, the Court's penalty is denial of costs.
This rule was adopted
by the trial Court.
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980
SUPREME COURT REPORTS
[1977] 2 s.C.R.
When the case went up in appeal, the High Court harked back
to the order of the Nagpur Bench in the same case i'n a revision filed
·against the order of payment of court-fee for the counter-claim. It
~s true the High Court had then held that only a specific sum relatmg to the sale of silver bars was the basis of the counter-claim and
the entire accounts of the Bombay shop was not at large before the
Court.
The High Court referred again to the decree first passed by
the trial Court to render an account of the Bombay
shop to the
defendant on the footing that the accounts in Bombay and Khamgaon
were so interconnected as to warrant a composite understanding of
the entries in the two shops.
This approach of the trial
Court in
passing a preliminary decree for rendition of accounts was set aside
by the High Court in appeal at the first round on the score that the
plea of the defendant was confined to one of set off under 0.8, r. 6
CPC.
Therefore, argued the High Court,
"A mere liability to account cannot be an answer by
way of set off to the claim of the plaintiff.
In fact, the
defendants in their written statement, claimed by way of set
off such ascertained sum of money which, according to,
them, was Rs. 17,000/-. It is
because such
ascertained
sum was claimed by way of set off that the claim was entertained_ for
investigation by the lower
Court.
Therefore,
the only question that was before the learned lower Court
was to find out what amount was due to the plaintiff from
the defendants in respect of the deposits of amounts made
in the Khamgaon shop and also to find out what amount
was due to the defendants from tthe plaintiff in respect of
the silver
transactions made in the Bombay
shop.
The
question of rendering accounts by the plaintiff to the defendants could not arise on the facts of the case."
The remand order was undoubtedly binding on the lower ,Court
and had directed a limited enquiry and passing of a decree 'in favour
of the party in whose favour the balance will be found due'.
The
High Court held that after the remand the learned trial Judge had no
jurisdiction to look into the Bombay accounts as a whole
and on
account of the misapprehension of the observations of the remand
order 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 no. 6, vested it with the jurisdiction to enquire
into the Bombay accounts in toto and pas·s the decree that w0e liave
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,
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JASRAJ INDER SINGH v. HEM RAJ (Krishna Iyer, !.)
981
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 Khatha. We are· not satisfied that the defendant has not
had a full say and we are therefore disinclined to accede to this
request.
The surviving question before us is whether it was in order for
the trial Court to have investigated the accounts in t¥ two shops
together as if they were transactions between the same two persons
or whether the remand order of the High Court at the first round had
fettered the trial Court's hands in doing justice in this comprehensive
way.
The suit is for a sum due on accounts.
The parties are the
· same.
There are two shops belonging to the same owner.
The re~
turn of the income fro!!J. the two shops, for income-tax purposes, is
a consolidated one. In sl;10rt, there was oruy one person who owned
two shops and it is wrong to construe the situation as i•f there were
two juristic entities or person•al. Secondly, the defendant, who dealt
with the plaintiff in the two shops, was the same person. He had
no dual characters t_o play.
The dealings were either in one or in
the other shop.
They were business dealings between .two businessmen, during the same p_eriod, and even inter-relat_~d, to such an extent that sometimes advances were made from one shop and realisations were made in ~h~ other shop.
In short an artificial dissectio111
of these transactions could not square up with the reality of the situation.
Shri Phadke urged that one contract was one transaction and a
set of contracts need not be necessarily brough~ up in the S\lme action
between the same parties. We consider that the true nature of the
action here is a suit on accounts for the sum due on striking a balance.
That itself is the cause of action.
Such a suit is not unfamiliar and such a cause of action may be made up of various minor
transactions.
Viewed at the micro-level each may be a si•ngle contract.
But viewed; at the macro-level as a suit on accounts, it is a
single cause of action. If the present action is one on accounts and
if the various entries in the two shops at Khamgaon and Bombay involve transfusion of funds and goods, there is no reason why we
should not accept as sound the approach made by the trial Court
that the entirety of accounts in the two shops should be viewed as a
composite one.
It reduces litigation; it promotes the final financial
settlement as between the parties! it has the stamp of reality.
Otherwise it would be
an odd distortion to
grant a decree for the
plaintiff for, say Rs, 10,000/- on the strength of the Khamgaon
accounts while he owesJ_he defendants Rs. 50,000/- according to the
Bombay accounts.
Order 8, rule 6, CPC 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 ~t may, in an appeal against the High Court's finding,
the Supreme Court is not bound by what the High Court might have
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SUPREME °COURT J!.EPORTS
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held in its remand order. n is true that a subordhiate court is bound.
by the direction of the High Court.
It is equally true that tlie 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 precedent of this Court in
support.
However, it transpires that in Lonankutty v. Thomman(')
this proposition has been affirmed.
Viewed simplistically,
the remand order by the High Court is a finding in an intermediate stage
of the same litigation. When it came to the trial court and escalated
to the High Court, it remained the same litigation.
The appeal before the Supreme Court is from the suit as a whole and, therefore,
the entire subject matter is available for adjudication before us.
If,
on any other principle of finality statutorily conferred or on account
of res judicata attracted by a decision in an allied litigation the matter
is concluded, we too are bound in the Supreme Court.
Otherwise,
the whole /is for the first time comes to this Court and the High
Court's finding at an intermediate stage does not prevent examination
of the position of law by this Court.
Intennediate stages
of the
litigation and orders passed at those stages have a provisional finality.
After discussing various aspects of the matter, Chandrachud J., speaking for the Court in Lonankutty (supra) observed:
"The circumstance that the remanding
judgment of the High
Court was not
appealed against, assuming that an appeal lay therefrom, cannot preclude the appellant from challenging the correctness of the view taken
by the High Court in that judgment."
The contention barred before the High Court is still available to be canvassed before this Court
when it seeks to pronounce finally on the entirely of the suit.
Shri Desai cited before us the decision of the
Bombay
High
Court, in Ratanlal( 2 ), as part of his argument.
Therein it is laid
d9wn that a remand order will not operate as res judicata and preclude the remanding court from reopening it at the subsequent stage
of the same continuing proceeding when the law underlying the remand order is differently interpreted by a larger Bench or by the
Supreme Court.
Such an order or finding recorded at the stage of
remand happens to be interlocutory and -cannot terminate the cause
finally so that when the litigation comes up before the remanding
court, the previous remand order would ordinarily be conclusive and
binding like any other interlocutory order.
But exceptions there are
where a re--consideration of such an order is necessitated either by
discovery of fresh matter or pf unforeseen development subsequent
to the order or change of law having retrospective effect.
We do
not make any comments on this argument of Shri Desai and leave
it at that.
(1) [1976] 3 s.c.c. 528.
(2) (1975) Mah. L.J. 65.
JASRAJ INDER SINGH v. HEM RAJ (Krishna Iyer, !.)
983.
·,
The trial Court's judgment has therefore to be restored. It accords
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with justice and with law.
There will thus be a decree in favour of
the plaintiff in a sum of Rs. 7,464/4/-. Even truthful cases urged
through unveracious forensic processes must be visited with the punitive curi'al displeasure of denial of costs and discretionary interest.
Here the plaintiff sued for a sum of Rs. 121000/~ and gets a decree
for less than Rs. 8,000/-. We deny hi~ costs for the amount decreed in his favour but allow costs for the defendant to the extent he
B:
has succeeded (viz., for Rs. 4,535/12/-). The equities of the situation are such, especially having regard to the long lapse of time and
the dubious attitude of the plaintiff and li•tigative prolixity, that we do
not award interest on the amount decreed at all.
P.B.R.
Appeal allowed-