REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

S.L.P. Civil) No(s).2896 OF 2010

B.S.KRISHNA MURTHY & ANR.                    Petitioner(s)

                VERSUS

B.S.NAGARAJ & ORS.                            Respondent(s) 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.

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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  instalments  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 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 Section  

89 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.

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List after receiving report from the Mediation Centre.

.....................J.  (MARKANDEY KATJU)

.....................J.  (GYAN SUDHA MISRA)

NEW DELHI; JANUARY 14, 2011.

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