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Harischandra Narayan Vinekar Vs. Kumma BIn Vithoba Komar Pant - Court Judgment

LegalCrystal Citation
CourtMumbai
Decided On
Judge
Reported in81Ind.Cas.296
AppellantHarischandra Narayan Vinekar
RespondentKumma BIn Vithoba Komar Pant
Excerpt:
civil procedure code (act v of 1908), order i, rule 3 - suit for rent payment to third person alleged--third person, whether proper party. - .....by the trial court in this case, as regards the joinder of defendant no. 2, and the ultimate decree passed by the court in favour of defendant no. 1 against defendant no. 2. the only question, appropriate to this suit was whether defendant, no. 1, was liable for the amount claimed by the plaintiffs. the questions as between defendant no. 1 and defendant no. 2 were not appropriate to this suit, and it seems to us that a simple suit has been unnecessarily complicated. though we, appreciate the desire of the learned judge to do justice, which, ho doubt on the facts found in this, case, would go to show that defendant 1st i was the sufferer, it is difficult to ignore the fact that oh a previous occasion the learned. judge did not believe defendant no. 1 on that point; whatever the.....
Judgment:

1. This application arises out of a small cause suit in the Court of the First Class Subordinate Judge at Karwar. It appears that the present defendant No. 2, Harischandra, had filed Suit No. 562 of 1920 against Pandurang in which he obtained a decree against him. At that time it was pleaded by way of defence that Kumma bin Vithoha, the present defendant No. 1 had really paid rent to Harischandra which was then claimed as being payable by Pandurang; but that defence was not believed and a decree was passed in favour cf Harischandra. Thereafter the present plaintiff Pandurang and Iris daughter, who are Mulgenidars of the Davasthan, filed Suit No. 267 of 1921 in the same Court to recover the rent which would be payable by Kumma, defendant No. 1, to them. Defendant No. 1 is admittedly their tenant. The learned Judge finds that the rent was due by him to the plaintiffs and has passed a decree for Rs. 27 against defendant No. 1. But as it appeared from the evidence which was recorded in this suit that as a matter of fact defendant No. 1 had paid this amount previously to Harischandra, he directed him to be joined as defendant No. 2 to this suit with a view to secure justice. After joining him as a party, the learned Judge held that defendant No. 1 had paid the feiit to defendant No. 2, exactly contrary to the conclusion which, he had reached oh that point in the previous suit, and in view of that finding he proceeded to paSs a decree in favour of defendant No. 1 against defendant No. 2. It is difficult to justify, the procedure adopted by the Trial Court in this case, as regards the joinder of defendant No. 2, and the ultimate decree passed by the Court in favour of defendant No. 1 against defendant No. 2. The only question, appropriate to this suit was whether defendant, No. 1, was liable for the amount claimed by the plaintiffs. The questions as between defendant No. 1 and defendant No. 2 were not appropriate to this suit, and it seems to us that a simple suit has been unnecessarily complicated. Though we, appreciate the desire of the learned Judge to do justice, which, ho doubt on the facts found in this, case, would go to show that defendant 1st I was the sufferer, it is difficult to ignore the fact that oh a previous occasion the learned. Judge did not believe defendant No. 1 on that point; Whatever the merits of the claim as between, defendant No. 1 and defendant No. 2 may be, it is quite clear that in this suit such a decree in favour of defendant No. 1 against defendant No. 2 could not he passed. We, therefore, make the Rule absolute and discharge that part of the decree of the lower Court which relates to the payment by defendant No. 2 to defendant No. 1. We also discharge the order of the lower Court with regard to the payment of costs by defendant No. 2 to defendant No. 1. We make no order as to costs in this Court and as to the costs of defendant No. 2 in the lower Court.


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