PETITIONER:
JASRAJ INDER SINGH
Vs.
RESPONDENT:
HEM RAJ MULTAN CHAND
DATE OF JUDGMENT14/02/1977
BENCH:
KRISHNAIYER, V.R.
GUPTA, A.C.
CITATION:
1977 AIR 1011 1977 SCR (2) 973
1977 SCC (2) 155
ACT
Partnership Act--Rendition of accounts--Plaintiff had two
shops at different places--Defendant had dealings at both
places--Plaintiff claimed account of one shop without set
off from the other--If set off permissible.
Jurisdiction of High Court--Remand order--Nature of--Lower
Court, if bound by directions in remand order.
HEADNOTE
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 shops were located at
different places, they were owned by the same person and in
equity and law, set off was Permissible and it accordingly
granted a decree.
On the plaintiff’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
village shop the defendant was entitled to a certain sum
from the city account and awarded a decree to the plaintiff
m respect of the net balance.
In appeal, the High Court held that after remand the
trial Court had no 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 plaintiff.
Restoring the trial Court’s order,
HELD: The true nature of the action in this case was a
suit on account to: the sum due on striking a balance. That
itself was the cause of action. [981E]
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-D]
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 a set off and thereafter to certain sums,
should be decided by the trial Court. The trial Court natu-
rally took the view that the High Court having ordered an
adjudication of the issue, vested it with jurisdiction to
enquire into the city accounts in toto and pass a decree.
If the village and city accounts had to be gone into, the
decree passed was correct. [980G-H]
2. 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. [981-H]
974
3. (a) After remand 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 second occasion or any
other Court of co-ordinate authority hearing the matter,
cannot discard the earlier holding. Both a finding in a
remand order cannot bind a higher Court when it comes in
appeal before it.-[982A-B]
(b) The remand order by the High Court is a finding at
an interreed are 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 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 challeng-
ing the correctness of the view taken by the High Court in
that judgment. [982E]
Lonankutty v. Thomman [1976] 3 S.C.C. 528, followed.
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos.
2208, 2209 of 1968.
From the Judgment and Decree dated the 10th/llth
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, .4. G. Ratnaparkhi, for respondent.
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 June 23, 1949 to February 1977--the former
being the date of birth of the suit and the later the termi-
nation, 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 law-
yers) tarry any longer to forge a speedy and radical juris-
prudence 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.
The High Court, thanks to the then rule of valuation
under Art, 133 (1)(a) of the Constitution, granted a certif-
icate 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,
975
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 simi-
lar 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 bad 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 an 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 Khamgaon
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 differ-
ent 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, may be for a lesser sum. Oftentimes, obdurate
legal obscruantism 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 ap-
proach being blinded by the cantankerousness of the plain-
tiff, 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
976
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 1). We are
courts of 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 com-
pose their quarrel. Counsel as often happens, constructive-
ly 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
khata was passed and that too leapt to the High Court re-
sulting 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 khata. 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 par-
ties. 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 defend-
ant’s Khata in the Bombay shop. The plain-
tiff, 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 par-
ties in the shops at Khamgaon and Bombay. The
977
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 de-
creed. 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 connect-
ed with each other that a composite account of
the entries in the two shops can be made by
the Defendants ?
* * * *
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 a set-off.
(b) Rs. 4,535-12-0 as stated by the Plaintiff
?"
Later, amended pleadings led to amended issues
of which issues 4 to 6 are meaningful and are
set out below with the findings thereon;
"4. Whether the Bombay and Khamgaon shops
owned by plaintiff’s partners are so connected
with each other that a composite account of
the entries in two shops can be 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.
6. Whether on making an account of the two
shops of the plaintiff of Bombay and Khamgaon
the defendants are entitled to a set-off and
thereafter to a sum of--
(a) Rs. 17,000/- as claimed by the
defendants or to 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
dealings with each other, that the dealings in Khamgaon and
Bombay were inter-related and not totally different transac-
tions, dissociated in nature and divorced in period. The
trial judge treated the totality of transactions as a com-
posie account and the suit as one on accounts. He ’ granted
a decree on these terms
978
"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 adjust-
ment, the eventual liability inter se shall be
determined. Costs shall abide the result."
The plaintiff appealed and the defendant filed cross-objec-
tions. After a ’study of O.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 direc-
tion for rendition of the Bombay account was illegal. The
Court observed:
"The learned lower Court was thus in
error in converting the claim of set off into
a claim for rendering accounts by the plain-
tiff to the defendants in respect of the deal-
ings 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 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
tower 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 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 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 pass a decree in favour of the party in
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 remanded for fresh decision, the trial Court, apparently
pressed by the injustice of amputating the composite deal-
ings, went on to hold that while the plaintiff was right in
his demand vis-a-vis the Khamgaon Khata, the defendant was
entitled to a sum of Rs. 4,535/12/- from the Bombay accounts
and awarded to the plaintiff a decree for the net balance of
979
Rs. 7,464/4/-. This he did in purported compliance with the
High Court’s direction. He was bound by it and to act
contrary to a higher court’s order is to be subversive of
the discipline that the rule of law enjoys in our hierarchi-
cal 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 shop,. were sold in Bombay and rightly
credited in the Bombay Khata.
To pick out a single true item which had been inextrica-
bly 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 is truth, is beauty and the strategy of
healing injustice is discovery of the whole truth and harmo-
nising human relations. Law’s finest hour is not in medi-
tating 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 according 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 while 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 cor-
rectness of any of the entries in these extracts of plain-
tiffs 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. 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 be-
cause 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 consid-
ered 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 penal-
ty is denial of costs. This rule was adopted by the trial
Court.
980
When the case went up in appeal, the High Court harked
back to the order of the Nagpur Bench in the same case in a
revision filed against the order of payment of court-fee for
the counter-claim. It is true the High Court had then held
that only a specific sum relating 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 ap-
proach 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 the
defendant was confined to one of set off under O.8, r. 6
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 the plaintiff in respect of the silver
transactions made in the Bombay shop. The
question of rendering accounts by the plain-
tiff 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 decid-
ed by the trial Court and this issue has been set out earli-
er 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 taro and pass the decree that woe 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,
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 the 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 lettered 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
return of the income from the two shops, for income-tax pur-
poses, is a consolidated one. In short, there was only one
person who owned two shops and it is wrong to construe the
situation as if 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 charac-
ters to play. The dealings were either in one or in the
other shop. They were business dealings between two busi-
nessmen, during the same period, and even inter-related, to
such an extent that sometimes advances were made from one
shop and realisations were made in the other shop. In short
an artificial dissection 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 brought up in the same
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 single 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 reali-
ty. 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 owes.the defend-
ants 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 it may, in an appeal against the High Court’s
finding, the Supreme Court is not bound by what the High
Court might have
982
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 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 tran-
spires that in Lonankutty v. Thomman(1) 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 esca-
lated 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. Other-
wise, the whole lis 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. Intermediate 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 Fart of his argument. There-
in it is laid down 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 conclu-
sive 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
of 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.
983
The trial Court’s judgment has therefore to be restored.
It accords 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 curial displeas-
ure of denial of costs and discretionary interest. Here the
plaintiff sued for a sum of Rs. 12,000/- and gets a decree
for less than Rs. 8,000/-. We deny him costs for the amount
decreed in his favour but allow costs for the defendant to
the extent he 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 litigative prolixity, that we do not award
interest on the amount decreed at all.
P.B.R. Appeal al-
lowed.
984