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Kerala Transport Co. Vs. Colonial Distributors and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberCivil Revn. Petn. No. 959 of 1970
Judge
Reported inAIR1971Ker230
ActsCode of Civil Procedure (CPC) , 1908 - Order 8A, Rule 1
AppellantKerala Transport Co.
RespondentColonial Distributors and anr.
Appellant Advocate T.L. Viswanatha Iyer, Adv.
Respondent Advocate E.R. Venkiteswaran, Adv.
DispositionRevision allowed
Cases ReferredRoy and Chatterjee (Private) Ltd. v. Scindia Steam Navigation Company Ltd..
Excerpt:
- .....legislature will be clearer if we see rule 9 of order viii-a. rule 9 provides that where any third party impleaded claims that he has a right of contribution or indemnification against another party, that party also can be impleaded in the suit following the third party procedure contemplated by order viii-a. if, in such a case also, the principle laid down by srinivasan j., is applied, it is clear that rule 9 of chapter viii-a will practically be a dead letter. therefore, on the interpretation put upon rule 2 of order viii-a by srinivasan j., i do not agree with him. the third party has every right to contest his liability to contribute or to in dignify the defendant: he can also step into the shoes of the defendant and fight the plaintiff on all grounds, which are available to the.....
Judgment:
ORDER

T.C. Raghavan, J.

1. The civil revision petition arises out of a proceeding under Order VIII-A of the Code of Civil Procedure for impleading a third party as a defendant. Two objections were raised before the lower Court: one that there was no privity of contract between the plaintiff and the third party sought to be impleaded; and two, that the lower Court had no jurisdiction to decide the question of contribution or indemnification between the defendant and the third party sought to be impleaded. The first objection the lower Court rejected; but, on the second objection, the lower Court agreed with the contention of the third party and dismissed the application for impleading.

2. Two decisions were cited before the lower Court, both of the Madras High Court, one by Rajamannar C. J. in S. S. Subulal Sahib v. N. Periyanna Pilial. (AIR 1957 Mad 679) and the other by Srinivasan J. in Roy and Chatterjee (Private) Ltd. v. Scindia Steam Navigation Company Ltd.. (AIR 1961 Mad 367). The first decision related to the first objection; and Rajamannar C. J. held that between the third party sought to be impleaded and the plaintiff there could, generally speaking, be no privity of contract. The third party procedure is intended to decide the question of contribution or indemnification of the defendant by the third party sought to be impleaded; and in such a case, it is evident that there cannot be any privity of contract between the plaintiff and the third party. On this question, there is no dispute also before me.

3. The next decision by Srinivasan J. held, on interpreting Rule 2 of Order VIII-A, that the third party could question the jurisdiction of the Court to consider the liability of the third party to the defendant for contribution or indemnification as if the question was the cause of action in a separate suit between them. The learned Judge held further that, if the Court where the suit was already pending had no jurisdiction to try that question the question of contribution or indemnification mentioned above, then the third party should not be impleadeas in other words, if the third party was residing outside the territorial jurisdiction of the Court, he should not be impleaded. With due respect to the learned Judge, I feel that the interpretation put upon Rule 2 of Order VIII-A by him is not in conformity with the intention of the legislature in enacting the said order. The third party procedure is intended to prevent multiplicity of proceedings: and if the question of contribution or indemnification by the third party has to be treated as a separate suit, even for jurisdiction, and to be filed in another forum, the third party procedure can be applied only within very narrow limits. The intention of the legislature will be clearer if we see Rule 9 of Order VIII-A. Rule 9 provides that where any third party impleaded claims that he has a right of contribution or indemnification against another party, that party also can be impleaded in the suit following the third party procedure contemplated by Order VIII-A. If, in such a case also, the principle laid down by Srinivasan J., Is applied, it is clear that Rule 9 of Chapter VIII-A will practically be a dead letter. Therefore, on the interpretation put upon Rule 2 of Order VIII-A by Srinivasan J., I do not agree with him. The third party has every right to contest his liability to contribute or to in dignify the defendant: he can also step into the shoes of the defendant and fight the plaintiff on all grounds, which are available to the defendant himself. But that has to be done in the suit, as laid within the jurisdiction, against the de-fendant, because the third party's liability to contribute or indemnify arises, strictly speaking, only on the decision of the suit against the defendant.

4. In this view, the decision of the lower Court on the second question is erroneous. Consequently, the civil revision petition is allowed; the order of the lower Court is set aside; and the third party sought to be impleaded is impleaded. However, I do not pass any order regarding costs, because it was the decision of the Madras High Court that was responsible for the wrong decision by the lower Court.


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