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Laxmiben and ors. Vs. Chandrawadan Chhotalal Soratwalla and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Case NumberSecond Appeal No. 643 of 1969
Judge
Reported inAIR1975Guj101; (1975)0GLR494
ActsCode of Civil Procedure (CPC), 1908 - Sections 96 - Order 20, Rules 15 and 16
AppellantLaxmiben and ors.
RespondentChandrawadan Chhotalal Soratwalla and ors.
Appellant Advocate N.C. Shah, Adv.
Respondent Advocate I.C. Bhatt, Adv.
Excerpt:
- .....an and from the date of the filing of the suit'. now, admittedly the date of the filing of the suit was october 22, 1956. therefore, the connection of the minor was severed with effect from october 22, 1956 and accounts had to be made as per the valuation as on the date of the suit i.e. on october 22, 1956. this decree was confirmed by the district court in appeal on february 18, 1969.the heirs of original defendant no. 1 laboured under a misconception that the decree directed severance of the connection of the plaintiff with effect from the date of his attaining majority and not with effect from the date of the institution of the suit. they thereupon appealed to the high court. the matter was admitted on october 24, 1969. it came up for hearing for the first time today on march 27,.....
Judgment:

1. This is a second appeal by the heirs of original defendant No. 1 which was opened but not argued by the learned counsel for the appellants on realising that what he considered to be a grievance was not in point of fact a grievance and that he was labouring under some misconception.

2. The suit giving rise to the present appeal was instituted on October 22, 1956 an behalf of a minor admitted to the benefits of a partnership, The suit was commenced under sub-section (4) of Section 30 for taking accounts of his share and for payment thereof to him and for, severing his connection from the firm. The trial Court decreed the suit and passed a preliminary decree on October 20, 1967. The relevant direction was incorporated in clause (1) of paragraph 28 of the judgment of the trial Court. By virtue of the said direction it was declared : 'connection of Plaintiff Chandrawadan Chhotalal was severed with the suit firm an and from the date of the filing of the suit'. Now, admittedly the date of the filing of the suit was October 22, 1956. Therefore, the connection of the minor was severed with effect from October 22, 1956 and accounts had to be made as per the valuation as on the date of the suit i.e. on October 22, 1956. This decree was confirmed by the District Court in appeal on February 18, 1969.

The heirs of original defendant No. 1 laboured under a misconception that the decree directed severance of the connection of the plaintiff with effect from the date of his attaining majority and not with effect from the date of the institution of the suit. They thereupon appealed to the High Court. The matter was admitted on October 24, 1969. It came up for hearing for the first time today on March 27, 1974, 16 years after the suit was instituted and 5 years after the District Court confirmed the decree pawed by the trial Court. And today as soon as the matter was opened and the submission was urged that the severance cannot be with effect from a date later than that of the institution of the suit and the assessment cannot be made as on a date later than that of the institution of the suit, the record was verified and it was realised that in fact the decree directed severance with effect from the institution of the suit and directed the assessment of the share as on the said date. In fact, therefore, what counsel considered to be grievance was not in reality a grievance at all for it was based on some misconception regarding the date. Upon realising this, the learned counsel for the appellant could not press the appeal.

3. The appeal, therefore, falls and is dismissed with costs.

4. Before the obsequial ceremonies are over, now is the time to lament over an avoidable tragedy. The matter will now have to go back to the trial Court and a final decree will have to be passed. That final decree may be subjected to an appeal which may be subjected to a further appeal to the High Court. All this will take years. In the present case the preliminary decree is being confirmed 15 years after the institution of the suit. The second appeal is being disposed of in the aforesaid circumstances 5 years alter the institution of the appeal. Every litigant involved in partition, partnership and accounts matters, where preliminary decrees are envisaged is visited with these tragic consequences (preliminary decrees subjected to appeals result in final decrees liable to further rounds of equally time consuming appeals). It is sufficient to break the heart of anyone who has the cause of justice at heart for it is nothing short of cruelty to make persons who admittedly have a share in joint properties and an interest in partnership properties wait for so many years. For ought we know he might not outlive the Court proceedings. There is no need to tolerate this state of affairs. The time factor can be radically shortened by a simple device. If for instance all the appeals arising out of the preliminary decrees are en-bloc posted for hearing, in the sittings (or if worse come to worse in three sittings), all the five-year old arrears can be wiped out. And if every year this formula is applied, there would remain no such matter pending for more than one year. According Priority en-bloc to matters where delay hurts most stands to reason as also to principle. Thus if delay cannot be eschewed, at least its poisonous fangs can be removed. And it is not inappropriate to observe that considerations of pragmatism rather than that of protocol deserve to be preferred in order to make the prayer to the God of justice more sincere, more moving and more meaningful.

5. Appeal dismissed.


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