(1) I consider that upon the facts of the situation with regard to which this interesting revision proceeding is filed, it is clear that the revision should be allowed both under O. 1, Rule 10 C.P.C. and under O. 8-A, Rule 1 C.P.C. This is upon very broad grounds of equity and the interests of injustice, as well as the strict applicability, to the facts, of the provisions that I have just cited. As regards the facts themselves, there is no dispute.
(2) The suit in the court below was instituted by a plaintiff (here, respondent 2), as an assignee of a mortgage extended by the revision petitioner on 7-11-1950. The simple defence of the revision petitioner to the action, as party defendant, was that he (mortgagor) had discharged the debt by payment to the original mortgagee (assignor), so that the debt was totally extinguished thereby, prior to the date of assignment. The revision petitioner to have been passed by the assignor, evidencing the discharge of the debt. The revision petitioner frankly conceded that the fact of this payment discharging the debt had not been engrossed on the document of mortgagee itself, and the document thereby formally discharged, but he relied on the collateral evidence of this receipt in proof of the discharge.
(3) Under those circumstances, the defendant (revision petitioner) prayed, both under O. 1 Rule 10 C.P.C. and P. 8-A Rule 1 C.P.C., which is a specific provision in Madras State enabling a third party procedure to be adopted in such cases, that the assignor and original mortgage be added as party defendant to suit, as he was a necessary and property party and a party against whom the revision petitioner could claim contribution or indemnity. The learned District Munsif thought that these provisions did not apply to the situation and dismissed the petition. I may here add that the proceeding, denying the genuineness of the receipt, precisely as the plaintiff had denied it; both the plaintiff-respondent and the proposed party took up the position that the proposed party (assignor) need not be added either under O. 1 Rule 10 C.P.C. or under O. 8-A R. 1 C.P.C.
(4) The arguments pressed by learned counsel for the two respondents against the allowance of this revision proceeding, can be briefly stated. Firstly, it is urged that O. 1, R. 10 C.P.C. does not apply, because the trial court, was not satisfied that the proposed party was either a necessary party to suit or a proper party. It is a power or discretion of the trial court, and not any right of party; the defendant in the suit cannot invoke O. 1, R. 10 C.P.C. as a matter of right. Secondly, the argument is that O. 8-A R. I does not apply, as, even in case this suit is decreed, the defendant cannot claim to be entitled to contribution or indemnity from the proposed third party. His claim can only be of the character of an action in damages. The last argument is that O. 34 R. 1. C.P.C. governs mortgage suits, and that the original mortgagee (assignor) having parted with his interest in the security, is not a proper party to this mortgage suit under O. 34 R. 1 C.P.C.
(5) The decisions of this court upon these two related aspects of the situation that has arisen in the suit may be briefly referred to. Secretary of State v. Murugesa Mudaliar : AIR1929Mad443 is a decision of Venkatasubba Rao J., laying down in general terms, the ambit and significance of O. I R. 10 C.P.C. The learned judge dissented from a prior decision of this court, which had held that, the judgment in the suit being inter parties, a plaintiff cannot be compelled to implead, as a defendant, a person against whom he sought no relief, by means of an application under O. 1 R. 10 C.P.C. The learned Judge pointed out the distinction between a necessary party and a proper party, and emphasised that the intention of the legislature was to avoid multiplicity of suits, and to ensure that the dispute would be finally determined in the presence of all the parties interested. Even if the plaintiff objected to the joinder of the proposed party, the court would have the power to direct that the proposed party be brought on record, if the court considered that this was essential in the interests of justice. The other decision, Narayana v. Gurramma, AIR 1941 Mad 364 is of Abdur Rahman J., and emphasises that the provision (O. 1. R. 10) must be liberally construed, in the interest of justice.
(6) I have carefully considered the arguments of learned counsel both for the plaintiff and the proposed party, why the court should not now, in the interests of justice, bring on record in this suit the proposed party, the original mortgagee (assignor) particularly as that would enable a complete adjudication of the controversy in the presence of all parties having an interest. I find these arguments to be singularly unconvincing. As regards O. 8-A R. I. C.P.C. manifestly, it applies to the situation and this can be easily shown. If we suppose that the suit is decreed, according to the defendant (revision petitioner), on an erroneous rejection of the receipt on which he relies, the revision petitioner will obviously have the remedy of filing a separate suit against the original mortgagee (proposed party), which will be in the nature of a suit for damages, or for enforcing an indemnity of some kind.
My attention has been drawn to the decision in Pattabhirama v. Ganapathi Kannappa Mudali, : AIR1962Mad202 wherein Ramachandra Iyer J., (as he then was) has construed the ambit of R. 1. of O. 8-A C.P.C. The learned Judge emphasised that the principle of the rule did not depend on the right of the plaintiff to choose parties to his litigation, and was for the protection of the defendant. No doubt, on the facts of that case, the learned Judge held that the possible claim which might arise, would not be of the nature of contribution or indemnity, but would only be of the nature of damages. In the present context, and on the present facts, I think that any later suit that might have to be filed by the defendant against the proposed party in case the present suit by the plaintiff (assignee, succeeds, might well be brought within the scope of an action for 'indemnity'. That expression, in my view, has to be broadly interpreted; in Burrow's Words and Phrases, page 92, certain dicta of Bowen L. J. In Birmingham and District Land Co. v. London and North Western Rly. Co., (1886) 34 Ch D 261 are quoted to the effect that the corresponding third party procedure (Order 16 Rule 48 as it then stood, of the Supreme Court rules) when it dealt with claims to indemnity, meant 'claims to indemnity as such either at law or in equity'. I do not see how it could be disputed that the present situation is one to which Rule 1 of O. 8-A would apply, both substantially, and in a formal sense as well.
The argument that O. 34 R. 1. C.P.C. would preclude the joinder, is clearly a very weak one, It cannot be stated dogmatically that the mortgagee-assignor had no interest in the security, though it might be that, on the date of assignment, there was no subsisting interest. In any event, O. 8-A is a separate provision, formulated in the interests of justice, and its applicability is not affected by O. 34 R. 1 provided that the facts of the case warrant the impleading of the proposed third party. As regards the arguments of learned counsel for the proposed third party, they would appear to amount to a resistance to having the matter of the genuineness of the receipt tested in this very suit itself, by the evidence of the proposed third party, subject to the rights of cross-examination by the party affected adversely by that evidence. In my view, that very situation warrants the inference that it is essential, in the interest of justice, to invoke the procedure under O. 8-A R. 1 and also that the impleading of the proposed third party is in the substantial interests of justice with regard to the scope of O. 1 R. 10 C.P.C. Consequently I allow the revision proceeding, and direct the impleading of the proposed third party as party-defendant. The trial will then proceed in due course.
(7) There will be no order as to cost.
(8) Revision allowed.