M. C. Chagla, C. J. - (1.)THIS is an appeal from a judgment of Mr. Justice Desai. and it arises out of a suit filed by a broker against his constituent to recover a sum of money due in respect of various transactions put through by the broker on the Stock Exchange. The only dispute between the parties in the suit was with regard to a transaction of 15 Bombay Dyeing shares. It would appear that on December 10, 1946, the defendant had given instructions to the plaintiff to sell these 15 Bombay Dyeing shares. The plaintiff's case was that on January 2, 1947, the defendant gave him instructions to make a badla of this transaction, and pursuant thereto he purchased 15 shares on January 3 and sold 15 shares on January 7, with the result that there was an outstanding transaction of sale of 15 shares for the settlement which ended on January 16, 1947, and as the defendant did not pay to the broker moneys that were due to him, he closed this transaction on January 16, 1947. As against this the defendant's version was that on December 21, 1946, he himself personally gave instructions to the plaintiff to close the outstanding transaction of sale of 15 Bombay Dyeing shares by a cross transaction of purchase, and, therefore, no transaction was outstanding after December 21, 1946. According to the defendant, he left Bombay on December 22, 1946, for Poona, returned to Bombay in the second week of January, and it was then that he came to learn that his instructions had not been carried out and he made his protest to the broker. The learned Judge accepted the plaintiff's version.
(2.)NOW in appeal Mr. Amin for the appellant has severely criticized the manner in which this case was conducted in the lower Court, and I very much regret to say, with respect to the learned Judge, that there is considerable force in the criticism. The learned Judge seems to have taken the witnesses into his own hand and. instead of leaving counsel to discharge their functions for which they are briefed and paid, assumed to himself the duties and the obligations of counsel. Such a course has been deprecated by the highest Courts in England. The learned Judge puts himself under a handicap, because any comments that he may make on the demeanour of witnesses under these circumstances cannot carry any weight with the Court of Appeal. In a striking passage Lord Greene, Master of the Rolls, in Yuill v. Yuill [1945] P. 15 observed as follows (p. 20): A judge who observes the demeanour of the witnesses while they are being examined, by counsel has from his detached position a much more favourable opportunity of forming a just appreciation than a judge who himself conducts the examination. If he takes the latter course he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of the conflict. Unconsciously he deprives himself of the advantage of calm and dispassionate observation. It is further to be remarked, as everyone who has had experience of these matters knows, that the demeanour of a witness is apt to be very different when he is being questioned by the Judge from what it is when he is being questioned by counsel, particularly when the Judge's examination is, as it was in the present case, prolonged and covers practically the whole of the crucial matters which are in issue. I regret to note that in the case before us also the learned Judge definitely descended into the arena, and Mr. Amin's criticism is that Ms vision was clouded by the dust of the conflict. It is a matter of greater regret that counsel who appeared for the parties should not have taken the trouble to see that the record was properly completed. Mr. Amin's grievance there also is fully justified and we find several lacunae in the record as appears before us. Apparently, counsel feeling that the tendency of the Judge lay in a particular direction submitted to that tendency and did not take the trouble to ask necessary questions in examination-in-chief or in cross-examination. Counsel has a duty to the Judge, but he has also a duty to himself and a duty to his client, and it is entirely unbefitting the dignity of the Bar for any counsel to permit himself to be made a sort of a pliable instrument in the hands of the Judge. It is not for counsel merely to watch which way the wind is blowing and then to trim his sail according to that wind. Our Bar has very great traditions and I am sure that it would never be said of this Bar that a member of it did not do his duty by his client even when he felt that the Judge was for the time being against him. After all, counsel has got to realise that the case does not necessarily end with the Judge. There is a higher Court and the higher Court may take an entirely different view of the evidence that has been led from the one that has been taken by the Court below. Therefore, in assessing the record we agree with Mr. Amin that we must discard entirely the views formed by the learned Judge as to the demeanour of witnesses. Normally, the Court of appeal attaches the greatest importance to what the trial Court says about a witness whom it has seen and which advantage the Court of appeal does not possess. But in this case, as I have pointed out earlier, in view of the fact that the learned Judge took the witnesses out of the hands of counsel and examined and cross-examined them himself, any significance that might attach to the observation of the trial Court as to demeanour of witnesses is entirely lost. We must, therefore, consider this record on its own merits and as if we ourselves were the trial Court. It is a great handicap for the Court of appeal to put itself into the position of the trial Court, but unfortunately the learned Judge has left us no other option but to do it. [the rest of the judgment is not material to this report. ] Bhagwati, J.
I fully associate myself with the observations made by my Lord the Chief Justice as regards the conduct of the case in the lower Court, both by the learned Judge and the counsel concerned in the case. On a perusal of the record it appears that the learned Judge entered into the arena and both the counsel appear to have allowed themselves to fade into insignificance with regard to the conduct of the case. Counsel for the defendant apparently seems to have lost heart. Counsel for the plaintiff thought that he was; quite safe in leaving the cross-examination of the witnesses on behalf of the defendant into the safe hands of the learned Judge. The result was that there were various lacunae in the examination of the various witnesses who were examined on behalf of the plaintiff as well as the defendant, which were pointed out before us by Mr. Amin for the appellant and also to a certain extent admitted by Sir Jamshedji Kanga for the respondent. I fully endorse what has been stated by my Lord the Chief Justice with regard to the duties which counsel owe to the Court, to themselves, as well as to the clients for whom they are briefed, and it would be presumptuous on my part to add to what has been already observed in that behalf. The only thing which one may say is that the conduct of the case left much to be desired and at one stage we actually made an offer, in view of the state of the record, to Mr. Amin for the appellant that if his client. felt that any injustice was done to his case the matter may be remanded by us to the Court below for the purpose of a retrial. For obvious reasons Mr. Amin for the appellant did not avail himself of the offer and we, therefore, have decided the appeal on the record as it stands before us. On the merits I have nothing to add to what has been already observed by my Lord the Chief Justice in the judgment just delivered. I agree with the conclusions reached by him and agree that the appeal should be dismissed with costs. .