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Parbhoo Dayal Vs. Dwarka Prasad and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1932All334
AppellantParbhoo Dayal
RespondentDwarka Prasad and anr.
Excerpt:
.....the plaintiff to the present litigation, namely, parbhudayal and parbhudayal satisfied that decree. there is undoubtedly a distinction between cases where the tortfeasors are aware of the fact that they were acting purely in tort and without any semblance of right in themselves, and cases where an act of trespass or other action in tort is committed more or less innocently and in good faith with a semblance in one's rights, although those rights may not actually exist. 6. no case has been cited to us where it may have been held distinctly that, as between persons who are conscious tortfeasors, in the sense that when they committed the act of tort knowing that what they were doing was nothing but a clear case of tort, a right of contribution existed. 186 still holds, good so far as..........in part to one basityar khan. basityar khan brought a suit, being no. 29 of 1927, against the present parties, to recover his own share of the value of the materials. that suit was decreed. the decree was executed against the plaintiff to the present litigation, namely, parbhudayal and parbhudayal satisfied that decree. thereupon, parbhudayal brought the suit, out of which this revision has arisen, to recover a certain sum of money said to be due to him from the defendants, by way of contribution.3. the learned judge of the small cause court dismissed the suit. he held:the plaintiff had no interest or share in the beams which he had removed and that he was conscious of his wrongful act, and that as such this suit for contribution does not lie.3. it has been argued before us that.....
Judgment:

Mukerji, J.

1. This is a revision against a decree of a Small Cause Court at the instance of the plaintiff, who has lost his suit.

2. The facts that have been found by the Court below are these. The plaintiff and defendants, who are two in number, without the least semblance of right, removed the materials of a building in a certain village. The building belonged, in part to one Basityar Khan. Basityar Khan brought a suit, being No. 29 of 1927, against the present parties, to recover his own share of the value of the materials. That suit was decreed. The decree was executed against the plaintiff to the present litigation, namely, Parbhudayal and Parbhudayal satisfied that decree. Thereupon, Parbhudayal brought the suit, out of which this revision has arisen, to recover a certain sum of money said to be due to him from the defendants, by way of contribution.

3. The learned Judge of the Small Cause Court dismissed the suit. He held:

The plaintiff had no interest or share in the beams which he had removed and that he was conscious of his wrongful act, and that as such this suit for contribution does not lie.

3. It has been argued before us that although the parties to the present suit were joint tortfeasors in the true sense of the expression, yet the plaintiff was entitled to succeed simply because there was a decree made in favour of Bastiyar Khan jointly against the parties to the present litigation. Reliance has been placed on a dictum of Lord Watson in Palmer v. Wick [1894] A.C. 318. His Lordship is reported to have said at page 332;

But the case is very different whore the injured party's claim of damage is liquidated by a joint and several decree against all the delinquents. In that case - which is the present - the sum decreed is simply a civil debt, and the meaning which the law attaches to a decree constituting a debt in these terms is, that each debtor under the decree is liable in solidum to the pursuer and that inter se each is liable only prorata, or, in other words, for an equal share with the rest.

4. Lord Halsbury thought that if the case had to be decided under the law of England he could not depart from the principle laid down in Merryweather v. Nixon 8 T. Rep. 186. It seems to us that the case of Palmer v. Wick [1894] A.C. 318 and another was decided on the basis of Scotch law which we are not bound to administer in India.

5. Speaking for ourselves, we do not see any distinction that can properly be drawn, in principle, between a case where a joint liability has been liquidated without a suit and where a joint liability has-been established by a suit, and the judgment has been liquidated by one of the parties. There is undoubtedly a distinction between cases where the tortfeasors are aware of the fact that they were acting purely in tort and without any semblance of right in themselves, and cases where an act of trespass or other action in tort is committed more or less innocently and in good faith with a semblance in one's rights, although those rights may not actually exist.

6. No case has been cited to us where it may have been held distinctly that, as between persons who are conscious tortfeasors, in the sense that when they committed the act of tort knowing that what they were doing was nothing but a clear case of tort, a right of contribution existed. In our opinion, the authority of Merryweather v. Nixon 8 T. Rep. 186 still holds, good so far as this country is concerned.

7. The learned Counsel for the applicant has relied on the case of Bam Prasad v. Arja Nand [1890] A.W.N. 161. It was the decision by a learned single Judge of this Court, Mahmood, J. The decision was based on the ground that a decree had been passed against all the parties to the suit and that, was enough ground for the plaintiff, a. joint tortfeaser, succeeding in a suit for contribution against his co-tortfeasor. We are not prepared to accept the correctness of this decision.

8. In Fakir a v. Tasadduq Husain [1897] 19 All. 462, a decree for costs had been made against two defendants, who opposed unnecessarily the claim of a rightful plaintiff to a certain property. The decree for costs was a joint one against the defendants. The plaintiff paid off those costs and sued to recover from his co-defendants a share of it. Sir John Edge, C.J. and Blair, J., remarked as follows:

Apparently the plaintiff and defendants here were wrongdoers. 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.

9. It will be noticed that the mere fact that a decree had been made jointly for costs against two persons was not held to be a sufficient ground for decreeing the plaintiffs' case. Although the facts of the case of Faqira v. Tasadduq Husain [1897] 19 All. 462 are different from the facts of the case before us, the former does lay down the true 'principle on which the contribution may be claimed. There must be either a contract, express or implied, by which it may be said that the defendant agreed to compensate the plaintiff in certain events, or that there should be an equity between the parties which would induce the Courts to grant the plaintiff a relief from |the burden he has undergone, by discharging the decree or a debt payable by the parties. The mere fact that three persons agreed to commit an act of tort cannot be regarded as a valid agreement much less as a valid contract on which a suit can be based by a joint tortfeasor against his co-tortfeasor. We may take it that when the plaintiff and the defendants in this case agreed to deprive Basityar Khan of the materials of the house and that they agreed to indemnify on another from the consequence of the Act, But if there was an implied agreement to that effect, it was an agreement which was immoral and cannot be countenanced in a Court of law.

10. Several other cases were cited before us, but we do not think that there is any case which bears directly on the point before us. Some of the cases have drawn the distinction to which we have already alluded and which undoubtedly exists between the cases of torts of different kinds.

11. In this particular case there is nothing in favour of the plaintiff which could induce us to grant him any relief. In the result we dismiss the application with costs.


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