& ANR. Vs B.S.Nagaraj & Ors.
O R D E R
Heard learned counsel
for the appearing parties. This is a dispute between brothers. In our opinion,
an effort should be made to resolve the dispute between the parties by
mediation. In this connection, we would like to quote the following passages from
Mahatma Gandhi's book 'My Experiments with Truth' :-
"I saw that the
facts of Dada Abdulla's case made it a very strong indeed, and that the law was
bound to be on his side. But I also saw that the litigation, if it were persisted
in, would ruin the plaintiff and the defendant, who were relatives and both belonged
to the same city. No one knew how long the case might go on. Should it be allowed
to continue to be fought out in court, it might go on indefinitely and to no advantage
of either party. Both, therefore, desired an immediate termination of the case,
if possible. I approached Tyeb Sheth and requested and advised him to go to
arbitration. I recommended him to see his counsel. I suggested to him that if
an arbitrator commanding the confidence of both parties could be appointed, the
case would be quickly finished. The lawyers' fees were so rapidly mounting up
that they were enough to devour all the resources of the clients, big merchants
as they were.
The case occupied so much
of their attention that they had no time left for any other work. In the meantime
mutual ill-will was steadily increasing. I became disgusted with the profession.
As lawyers the counsel on both sides were bound to rake up points of law in support
of their own clients. I also saw for the first time that the winning party never
recovers all the costs incurred. Under the Court Fees Regulation there was a
fixed scale of costs to be allowed as between party and party, the actual costs
as between attorney and client being very much higher. This was more than I
could bear. I felt that my duty was to befriend both parties and bring them
together. I strained every nerve to bring about a compromise. At last Tyeb
Sheth agreed. An arbitrator was appointed, the case was argued before him, and
Dada Abdulla won. But that did not satisfy me.
If my client were to
seek immediate execution of the award, it would be impossible for Tyeb Sheth to
meet the whole of the awarded amount, and there was an unwritten law among the Porbandar
Memons living in South Africa that death should be preferred to bankruptcy. It was
impossible for Tyeb Sheth to pay down the whole sum of about # 37,000 and
costs. He meant to pay not a pie less than the amount, and he did not want to
be declared bankrupt. There was only one way. Dada Abdulla should allow him to
pay in moderate installments. He was equal to the occasion, and granted Tyeb
Sheth installments spread over a very long period. It was more difficult for me
to secure the concession of payment by installments than to get the parties to
agree to arbitration. But both were happy over the result, and both rose in the
public estimation. My joy was boundless. I had learnt the practice of law. I
had learnt to find out the better side of human nature and to enter men's hearts.
I realized that the true function of a lawyer was to unite parties riven
asunder. The lesson was so indelibly burnt into me that a large part of my time
during the twenty years of my practice as a lawyer was occupied in bringing about
private compromises of hundreds of cases. I lost nothing thereby-not even
money, certainly not my soul.
" In our
opinion, the lawyers should advise their clients to try for mediation for resolving
the disputes, especially where relationships, like family relationships, business
relationships, are involved, otherwise, the litigation drags on for years and decades
often ruining both the parties. Hence, the lawyers as well as litigants should
follow Mahatma Gandhi's advice in the matter and try for arbitration/mediation.
This is also the purpose of Section89 of the Code of Civil Procedure. Let the
matter be referred to the Bangalore Mediation Centre. The parties are directed
to appear before the Bangalore Mediation Centre on 21.02.2011.
List after receiving
report from the Mediation Centre.
(GYAN SUDHA MISRA)