1. The parties to the Small Cause suit out of which this Civil Revision Petition arises were co-defendants in a previous suit. A Joint decree for costs was passed against them, the amount was recovered wholly from the plaintiff, and he claimed and obtained a decree for contribution from the four defendants. The question is whether any such claim can be supported, and, if so, whether the Lower Court was right in awarding a moiety of the costs paid.
2. There is a quantity of case-law, not entirely reconcilable, upon this topic. A number of earlier cases, such as Suput Singh v. Imrit Tewari I.L.R. (1880) 5 C. 720, Manja v. Kadugochen Nayar I.L.R. (1883) 7 M. 89 and Thang-ammal v. Thyyamuthu I.L.R. (1887) 10 M. 518, apply the test adopted in the English case, Merryweather v. Nixan (1799) 8 Term Rep. 186 : 101 E.R. 1337 whether and to what extent the parties were tort-feasors in the prior action. Upon this principle, too, a claim was rejected by Kumaraswami Sastri, J., in Koppana Chelamiah v. Suryanarayana Jagapathi (1919) 10 L.W. 261. More recently Waller, J., in Narayanamurthi v. Chandrayya : AIR1927Mad790 has shown that the House of Lords has refused to follow Merryweather v. Nixan (1799) 8 Term Rep. 186 : 101 E.R. 1337 Lord Herschell observing:
It is not found on any principle of justice or equity or even of public policy which justifies its extension to the jurisprudence of other countries.
3. Upon this ground it was declared by the Allahabad High Court in Parsotam Das Kolapuri v. Lachmi Narain I.L.R. (1922) 45 A. 99 and it has not been seriously pressed upon me here. It is further conceded that the mere fact that he has satisfied a joint decree for costs will not, without more, entitle the plaintiff to contribution. As to what more has to be shown, a distinction needs to be drawn between a decree for costs against co-plaintiffs and one against co-defendants. It appears to me, with respect, that this distinction has not been sufficiently kept in view by Daniels, J., in Babu Ram v. Badri Das (1926) 95 I.C. 689. He expresses the view that 'prima facie a right of contribution exists between persons against whom a joint decree for costs has been passed and that it is for a defendant seeking to avoid liability to show some equity which entitled him to exemption.' The two cases of his own Court which he cites in support of this proposition, Ramsarup v. Baij Nath I.L.R. (1920) 43 A. 77 and Parsotam Das Kolapuri v. Lachmi Narain I.L.R. (1922) 45. A. 99, relates to co-plaintiffs, and in the latter case Ryves, J., recognises that a different rule would apply to co-defendants. The objects and interests of co-plaintiffs are identical, and from their voluntary association it may be said that there arises an implied contract, which equity will enforce, to share gains and losses. It is otherwise with co-defendants who may be forced into the position against their will, and whose interest may be adverse inter se. Upon such grounds as these it was held in Mulla Singh v. Jagannath Singh I.L.R. (1910) 32 A. 585 that where one of the defendants pays the full amount of the costs, and then sues his co-defendants for contribution he must show some equity existing which will make his co-judgment-debtors liable for contribution.
4. I think it may perhaps also be said, as the petitioner's learned advocate contends, that in this respect a decree for costs stands upon a different footing from a decree for the payment of money arising out of a joint liability. It was a decree of a latter kind which was dealt with in Arunachallam Servai v. Beer Vavu Rowther (1928) M.W.N. 394 and the observations in the judgment must be read in the light of that circumstance.
5. I think then that the learned Judge of the Court of Small Causes was not right in requiring the 1st defendant, who alone contested the suit, to show some equity in his favour which would entitle him to exemption. It is the plaintiff who must show an equity entitling him to contribution. Turning now to the facts, the prior suit was brought by an alleged nearest reversioner to recover an estate from the present plaintiff (then 1st defendant), who denied the reversionary right. The remaining defendants--now defendants in the present suit--were impleaded as lessees of the present plaintiff. They filed no written statement and were ex parte throughout. The present plaintiff who alone contested, failed in the first Court and failed again on appeal. I cannot find that the course which he took was in any respect affected by the fact that his lessees were impleaded as co-defendants. He was fighting for his own hand, and no such principle as underlies Section 70 of the Contract Act can avail him to fix a liability upon the other defendants. Nor, except perhaps to an insignificant extent in the matter of process-fees for serving these defendants, can it be said that the costs amounted to more than he would have had to pay had they not been included. It is argued that they could have avoided inclusion in the order as to costs if they had put in an appearance and undertaken to accept any decree that the Court might pass. There is not very much difference between doing this and remaining ex parte, and I cannot agree that their failure so to appear and plead necessarily entitled the plaintiff to contribution.
6. The order of the Lower Court, which makes these defendants liable for a half share of the costs, appears to me plainly inequitable, because they can in no way be held responsible for such items as service of process on witnesses, and subsistence allowance of witnesses, which together amounted to over Rs. 100 of the Rs. 260-2-0 awarded and are due to the contest of the present plaintiff. I should feel compelled therefore on any view to allow this petition in part. But it appears to me that, for the reasons I have indicated, the plaintiff has not succeeded in showing any such equity in his favour as will entitle him to a decree for any measure of contribution; and although only one defendant contested the suit and has preferred this petition, the conclusion must be that the plaintiff has failed in establishing the liability of any of them. I, therefore, allow the petition, set aside the decree of the Lower Court and dismiss the suit with costs to petitioner (1st defendant) in both Courts.