This case is among the
mammoth cases tried in the Bombay High Court. It was heard by Mr.
Justice Russell at the same time that the great Parsi Panchayat Case
was going on before Davar
and Beaman JJ. Bahadurji with Setalvad and B. J. Desai
appeared
for the plaintiff; and Inverarity appeared for the Aga Khan, instructed
by
Moos of Payne & Co. The magnitude of the case may be
seen from the fact that voluminous evidence on commission was taken at
various places all over the world; and Inverarity raised as many as 128
issues. The plaintiff's claim shortly was, that the offerings
made to the Aga Khan by his followers and votaries were not made to him
personally, and were not his personal property, but enured for the
benefit of all the members of the Aga Khan family, including the
plaintiff. The case dragged on for a number of days.
Thereafter Bahadurji left the case to his junior B. J. Desai.
While certain questions were put to the Aga Khan by the plaintiff's
counsel, Inverarity applied that, having regard to the nature of the
questions, the court should be cleared. Russell J. made the
order. On this, by way of protest, plaintiff's counsel Desai also
withdrew. The position, however, appears to be that by this time
the patience as well as the resources of the plaintiff had been
exhausted, and she found it impossible to pursue or finance the case
any longer. On this, ordinarily the suit would be
dismissed with costs. Inverarity, however, insisted that the
plaintiff by withdrawing abruptly from a case could not deprive the
defendant of the judgment to which he was entitled; and that the court
should proceed to give judgment on the evidence and the materials that
had been placed before it. Russell J. accordingly gave judgment
for the defendant, complimenting both Inverarity and Moos for the
manner in which they had prepared and presented the case.
In this connection, it may be interesting to note another Aga Khan case which is referred to by Sir Chimanlal Setalvad, who was Aga Khan's counsel in that case. This case was tried at Karachi, and Setalvad along with Mulla was briefed for the Aga Khan. Prior to proceeding to Karachi, Setalvad held a consultation with his solicitors and Mulla. They considered all the points, and they all agreed that one point which arose in the case was not worth arguing. After going to Karachi, Setalvad held another conference with the Aga Khan's Karachi pleaders; and they too agreed that this point was not worth pressing before the court. When Setalvad got up to argue the case, he put forward all the points which in his opinion and in that of all the other lawyers of the Aga Khan, were substantial. After he had done with them, he turned to his Karachi pleader, and asked him whether they were sticking to the view that the remaining point was not worth arguing. Luckily, the pleader said, " Why not put it for what it is worth? Nothing will be lost." The point was put; and Setalvad records that it was mainly on that point that the case was decided in their favour. The moral of the matter is, "never abandon a point however flimsy and hopeless it may appear to you." Setalvad further says, Sir Lawrence Jenkins once told him, that Sir Charles Paul, who was Advocate-General of Bengal in Calcutta, was in the habit of urging vehemently every point, good, bad or indifferent, without any discrimination. When asked why he did so, Paul said, "you never know how or when you catch the old fool sitting up there." A similar instance of counsel's mistaken estimate of the worth or weight of a point, is mentioned in connection with Lord Westbury, Lord Chancellor of England. Lord Westbury's christian name was Richard Bethell; and while practising at the Bar he was known by this name. Bethell had made a very great reputation at the Bar for his powerful advocacy. But he was domineering, intolerant and insolent in his behaviour towards all who dealt with him, including solicitors and his juniors at the Bar. Even judges were afraid of him. It is said that on one occasion, while he was holding a consultation with his junior, the latter suggested a point, at which, as usual, Bethell came down upon the poor fellow, and told him not to suggest such foolish and piffling points not worth mentioning. When the matter came on before the Court of Exchequer, and Bethell had with his usual vigour and vehemence urged all the points on which he relied, the Barons of the Court of Exchequer (they were five of them) conferred among themselves for a time; and then turning to counsel, the Chief Baron said, "Mr. Bethell, we have considered all your points; we think there is nothing in them. But you have not argued one point which seems to us to be of some substance in your favour"; and the Chief Baron proceeded to mention the point. As soon as he alluded to it, Bethell turned to his junior and said in an audible whisper, "Why Tom, the old fool is taking up your point!" And it was on that solitary point that the case was decided in Bethell's favour. * * * * *
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