Civil Appeals Nos 2208 2209 of 1968
From the Judgment and Decree dated the 10thllth August
1965 of the Bombay High Court Nagpur Bench in First Appeal Nos 120 and 123 of 1965
ST Desai DN Mishra and BN Mohta for the appellant MN 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 1a 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 11401 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 CPC 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 17000 as claimed by the Defendants or to a set off
b Rs 4535 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 4469710 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
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 17000 as claimed by the defendants or to a set off No
b Rs 453512 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 O8 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 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 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 453512 from the Bombay accounts and awarded to the plaintiff a decree for the net balance of 979 Rs 74644 
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
exhibit 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 exhibit P 23 all the debit entries were within time at the material period
I answer issue 5c 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 12000 minus Rs 453512 ie Rs 74644 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 O8 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 17000 
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 10000 on the strength of the Khamgaon accounts while he owesthe defend ants Rs 50000 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 vs Thomman1 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 Ratanlal2 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  2 983 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 74644 
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 12000 and gets a decree for less than Rs 8000 
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 453512 
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
PBR Appeal al lowed


Summary:
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 vs Thomman   followed