Norman Macleod, Kt., C.J.
1. The questions in this appeal arise out of the third party procedure which was introduced some years ago by means of certain Rules numbering 127 to 133 of the High Court Rules. There is no-mention in the Civil Procedure Code of third party procedure. The intention is to prevent a multiplicity of suits by bringing in third parties against whom a defendant claims contribution or indemnity. The first step is to issue a notice by leave of the Court or a Judge. A copy of the notice is served on the required person according to the Rules relating-to the service of writs of summons. In this Court the. practice regarding the service of writs of summons is somewhat different from that in England, where the action is commenced by a writ, and it is after that that directions are given for filing the pleadings.
2. In this case a notice was issued against one Haji Karim Elahi Sheti at the request of the defendant. Then in the ordinary coarse the matter came before the Chamber Judge for directions. Under Rule 130 the Court or Judge, upon the hearing of such application, may, if satisfied that there is a question proper to be tried as to-the liability of the third party to make the contribution or indemnity claimed, in whole or in part, order the question of such liability, as between the third party and the defendant giving the notice to be tried in such manner, at or after the trial of the suit, as the Court or Judge may direct. Then, under Rule 131 the Court or a Judge upon the hearing of the application mentioned in Rule 130 may, if it shall appear desirable to do so, give the third party liberty to defend the suit, upon such terms as may be just, or to appear at-the trial and take such part therein as may be just.
3. On the 5th of October 1917, an order was made by the Chamber Judge on an application for directions, whereby it was ordered that the summons for directions be made absolute and the third party was to file his written statement within four weeks from the date of the order and file his affidavit of documents within ten days after the time to file his written statement had expired, and the third party was to be at liberty to appear at the trial of the action and take such part therein as he might be advised and should be bound by the result of the trial. It was further ordered that the question of the liability of the third party to indemnify the defendant should be tried at the trial of the action but subsequent thereto.
4. When the suit came on for hearing the first issue that was raised was this: 'Whether this Court has jurisdiction to try this suit between the defendant and the third party'? As between the plaintiff and the defendant the claim seems to have been admitted. Bat toe third party disputed the liability which the plaintiff claimed had arisen on the transactions between himself and the defendant. The Court, therefore, tried the questions at issue between the plaintiff and the defendant, and passed a decree for Rs. 55,783-9-4 and interest, less Rs. 28,000 paid on account.
5. Then the Court proceeded to deal with the first issue, the issue of jurisdiction, and came to the conclusion that the question of jurisdiction was res judicata on the ground that it had been decided by the Chamber Judge that the Court had jurisdiction to bring in the third party at the hearing of the suit between the plaintiff and the defendant, and also had jurisdiction to decide the questions, between the third party and the defendant on the contract of indemnity.
6. Now, it is quite certain from the records, and from what has been told the Court by Mr. Kanga who appeared at the argument of the summons for directions, that Mr. Justice Kajiji never applied his mind to the question whether or not the Court had jurisdiction to decide the matters in issue between the plaintiff and the defendant, the original parties to the suit, on the one hand and the third party, and had never decided that leave was unnecessary under Clause 12 of the Letters Patent.
7. The appellant was, therefore, reduced to this argument, that it must be assumed from the order made on the summons for directions that as a matter of fact it had been decided that leave under Clause 12 of the Letters Patent was unnecessary. I am afraid I cannot accede to that argument. The only way in which a matter at issue between the parties can be held to be res judicata when it has not been actually decided by the Court is under Section 11, Explanation IV, of the Civil Procedure Code:
Any matter which might and ought to have been made ground, of defence or attack in such former; suit shall be deemed to have been a matter directly and substantially in issue in such suit.
8. But it was not necessary on the summons for directions that this point of jurisdiction should have been decided. On that summons the defendant wanted to bring in the third party into the proceedings instituted by the plaintiff against him, and although the learned Judge might have decided at that time to refuse directions, from the fact that he gave directions it cannot be assumed that he decided the point of jurisdiction. The order on the summons for directions merely amounts to this, that the third party comes into the suit as if he 'was an added party defendant and then it is open to him at the trial to raise any issues which an added defendant is entitled to raise, one of which is: 'Whether leave ought not to have been given under Clause 12 of the Letters Patent as he war. residing outside the jurisdiction'. Therefore, in my opinion, Mr. Justice Kajiji never decided that the Court had jurisdiction to deal with the third party and the question remained to be decided at the hearing of the action. It would have been better if it had been decided at the commencement of the proceedings. Had it been decided in favour of the third party, he could go out altogether instead of remaining while the questions between the plaintiff' and the defendant were being fought out. It is quite clear that only a part of the cause of action, if any, arose within the jurisdiction. Therefore, leave under Clause 12 of the Letters Patent was absolutely necessary.
9. But it is suggested that the order, giving leave to issue the third party notice, contained a direction that the notice should be served upon the prospective third party by sending it by registered post to his address at Peshawar, and we are asked to assume from that that it is equivalent to leave under Clause 12 of the Letters Patent. We do not know how the order came to be drawn in this form, or whether the Judge's attention was drawn to these particular, words, or whether the Judge as a matter of fact thought he was giving leave under Clause 12 of the Letters Patent. I do-not think we are entitled to assume that he did think he was giving leave under Clause 12 of the Letters Patent.
10. The notice is served according to the rules relating to the service of writs of summons. In the case of an. ordinary suit leave is obtained from the Judge to file the suit under Clause 12 of the letters Patent when the plaint is presented and after that the summons goes out and if leave has been obtained, then it will follow that the summons will go to be Served on the defendant outside the jurisdiction. But I think it is extremely necessary, before it can be assumed that leave has been granted voider Clause 12 of the Letters Patent, that it must be proved that an application was made to the Judge under Clause 12 of the Letters Patent, and if the Judge makes the order it should appear clearly on the face of it that he was giving leave under Clause 12 of the Letters Patent. This is always done in the case of plaints which are presented to the Chamber Judge.
11. In my opinion, therefore, in the first place the matter is not res judicata. In the second place leave was not granted and never has been granted under Clause 12 of the Letter's Patent, as it ought to have been if the Court was to have jurisdiction over the third party.
12. The result must be that the appeal succeeds. The decree against the defendant will stand. The decree against the third party is reversed and the third party must go out of the action and is entitled to his costs throughout.
13. The interesting and important point to my mind here is whether the question of jurisdiction is res judicata; that is whether the question was decided either explicity or impliedly by Mr. Justice Kajiji when he made his Chamber order of the 5th of October 1917. Certainly it was not decided explicitly. So it has to be considered whether it was decided impliedly, and that can only be if the third party was under an obligation to place the question before Mr. Justice Kajiji and demand from him a decision on the point.
14. In order to consider whether the third party was under such obligation, we have to look to the theory and practice of third party procedure. As far as I can understand it, it involves what may be called a triangular duel, in which every one of the three parties has to launch an attack against and be prepared to meet an attack from each of the other two.
15. Now, before a party is dragged into litigation of this character, it is provided, and very properly provided, that a Judge's order must be obtained, and having regard to the character of the procedure and having regard also, to the actual words of Rules 127 to 133 of the High Court Rules, it seems to me tolerably clear that what a Judge has to decide is primarily, whether the third party is or is not to be brought into the suit; whether in. short there is to be this triangular duel, or whether the matter is to be disposed of by one or possibly two duels of a more normal type. In considering whether the third party ought or ought not to be brought into the suit, the Judge is not necessarily concerned in any way with the defence of the third party. What lie is concerned with is to determine whether there is apparently a case against this third party which it is proper or convenient that he should be required to meet in the particular suit; and the result, as I understand the Rules and theory of third party procedure, is that when the third party is appointed to a suit, it is open to him when the suit comes on for trial to take every line of defence that he possibly can. Possibly the Judge could consider the question of jurisdiction if insisted to do so. But as that would be one of the defences of the third party in the suit, the Judge was not bound to consider it, nor was the third party bound to ask the Judge to determine it. It seems that he did not ask the Judge to do so nor did the Judge do it. And so it does not seem to me that Mr. Justice Kajiji's order in any way restricted the capacity of the third party to take any defence he chose. One of the defences he chose to take was that the Court had no jurisdiction. As my Lord the Chief Justice has pointed out, that is a perfectly correct line of defence. The Court had no jurisdiction. I concur in the order proposed.
16. I think it is desirable to point out that when a defendant asks the Court to issue a third party notice in a case in which leave has to be obtained under Clause 12 of the Letters Patent, then an application should be made to the Judge for such leave to be endorsed on the notice in the same way as it is endorsed in a plaint.