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Fakire and ors. Vs. Tasadduq HusaIn and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1897)ILR19All462
AppellantFakire and ors.
RespondentTasadduq HusaIn and ors.
Excerpt:
costs - joint decree for costs against defendants having separate defences, defendants being also wrong-doers--suit for contribution--suit not maintainable. - .....and got a decree as against the defendants here. the decree, so far as costs were concerned, decreed costs jointly against the defendants. this plaintiff paid all those costs and now seeks by this suit to compel his co-defendants in the former suit to contribute to the costs which were paid to the plaintiff in that suit. the first court dismissed the claim. the district judge of allahabad, relying on the decision in kristo chunder chatterjee v. j.p. wise 14 w.r. cr. 70, dismissed the appeal. from that decree this appeal has been brought.2. it appears to us that it lay upon the plaintiff here to show that there was either some contract between him and the defendants, or some equity which created a duty on these defendants to contribute to the costs in question as between themselves......
Judgment:

John Edge, Kt., C.J. and Blair, J.

1. This was a suit for contribution. It arose in this way. The plaintiff in a former suit, to which the appellant here was an original defendant, sought possession of a mandi and a house. The plaintiff here, in that suit a defendant, defended as to all the property claimed; as to part alleging that he was a tenant who had not received notice; as to the rest entirely denying the title of the plaintiff to that suit. The defendants here, we suppose, being desirous of embroiling themselves in litigation, got themselves made defendants, and they also claimed the mandi, but made no claim to the house. In the result the plaintiff in the former suit recovered as against this plaintiff most of what he claimed, and got a decree as against the defendants here. The decree, so far as costs were concerned, decreed costs jointly against the defendants. This plaintiff paid all those costs and now seeks by this suit to compel his co-defendants in the former suit to contribute to the costs which were paid to the plaintiff in that suit. The first Court dismissed the claim. The District Judge of Allahabad, relying on the decision in Kristo Chunder Chatterjee v. J.P. Wise 14 W.R. Cr. 70, dismissed the appeal. From that decree this appeal has been brought.

2. It appears to us that it lay upon the plaintiff here to show that there was either some contract between him and the defendants, or some equity which created a duty on these defendants to contribute to the costs in question as between themselves. Apparently the plaintiff and defendants here were wrong-doers. They were holding on to property to which the plaintiff in the former suit was entitled, and to which they (or either or any of them) were not entitled. Each was acting independently and for his own benefit, and setting up a title against the plaintiff to the former suit which was independent of, and separate from, and inconsistent with, the title set up by the other defendants. Their claims were mutually exclusive. There was no contract between them. One was not acting as the servant of the other; and there was no equity between these persons, whose cases were antagonistic to each other.

3. It appears to us that the principle upon which Kristo Chunder Chatterjee v. Wise 14 W.R. Cr. 70., and Sreeputty Roy v. Loharam Roy 7 W.R. 384, were decided is the correct principle to apply in this case. It is the principle which we believe the Privy Council would have applied; at least so we conclude from the judgment of their Lordships in Abdul Wahid Khan v. Shaluka Bibi I.L.R. 21 Cal. 496, at p, 503. That there may in some events be contribution between wrong-doers is shown from the judgment in Suput Singh v. Imrit Tewari I.L.R. 5 Cal. 720. No facts were alleged or proved here, and no facts existed, which would entitle the plaintiff to obtain contribution from the defendants in respect of these costs.

4. We dismiss this appeal with costs.


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