Again. "The methods of interpretation which the Sudder Courts borrowed
from the Supreme Courts imported from Westminster Hall put a stop to
any natural growth and improvement of Hindu law."
That is to say we introduced new ideas, but sat on the safety-valve
lest they should produce any effect. Sir Henry Sumner Maine's book is
full of similar expressions, but I need quote no more. Those who wish
to read how a lawyer himself has admitted this failure of law will no
doubt read the book for themselves.
And now let us go on to the other functions of the Civil Courts--money
decrees and so forth.
I do not think that they are any more in touch with the public than the
Criminal Courts.
To begin with, they suffer from the same defect that a trial before a
Civil Court is not an inquiry into truth, but a duel between parties.
Indeed this is even more manifest than in the Criminal Courts, for
there the magistrate does to the best of his small ability go outside
the record and try to ascertain facts for himself; in the Civil Courts
the judge never does so. He is simply and purely an umpire. Has the
plaintiff proved his case? If so, give him a decree; if not, then not.
Therefore perjury, and even forgery, are more common here than in the
Criminal Courts.
Now let us go back to the way suits originate, and see what the cause
is.
There are, of course, a few cases where the issue is clear from the
first. A dies. B and C both claim his inheritance. Here from the
beginning is a clear issue which can be brought into Court and fought
out. It must come into Court, because in no other way could it be
settled. But there are few such suits. In the great majority of cases
the original issue is quite a small one, but when it comes into Court
it is, by one side or the other, or both, swollen out of all
recognition. Take the following as an example. It is from a case I
heard once.
A and B were both natives of India--Hindus--and had been partners. I
cannot remember their business beyond that they bought articles in
Upper India and imported them into Upper Burma, where they sold them.
It was a small business. One partner would go to India, buy stock, and
return with it to Burma. They would both trade in it, and when it was
nearly done one of them would go away to India again. This had gone on
for some years. They agreed together excellently and made a decent
profit. They kept all their accounts in their heads, aided by an
occasional scrap of memoranda, and made a settlement from time to time.
Then they would begin afresh.
At last came a disagreement.
When A returned to Burma with a new stock, B objected to the price paid
for one item, alleging that A had been "done," and had paid too much.
A indignantly repelled this accusation. B stood to his guns. The item
was only about five hundred rupees, and the difference was not more
than twenty or thirty rupees, but neither would give way.
Public-domain text, read in full here on John Shaqi.
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