Judgment

KRISHNA IYER, J.:- 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 plaintiffs 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 th