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Payachi Etathil Krishnan Atiydti Vs. Chanderakkaran Kizhakke Veetil Kannan - Court Judgment

LegalCrystal Citation
SubjectContract
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 1252 of 1952
Judge
Reported inAIR1955Mad721
ActsContract Act, 1872 - Sections 43; Code of Civil Procedure (CPC) , 1908 - Sections 35
AppellantPayachi Etathil Krishnan Atiydti
RespondentChanderakkaran Kizhakke Veetil Kannan
Appellant AdvocateA. Atchuthan Nambiar and ;C.P. Louis, Advs.
Respondent AdvocateT.K. Raman Nambiar, Adv.
DispositionRevision dismissed
Cases ReferredVenkata Rao v. Venkayya
Excerpt:
- .....revision filed by the defendant against the decree of the learned district munsif in a small cause suit filed against him by the plaintiff respondent herein for contribution. the present plaintiff was the first defendant and the defendant was the second defendant in another suit o. s. no. 69 of 1949 brought against both of them by a third party in respect of land for a declaration of title and injunction. in that suit both defendants 1 and 2 set up title and possession' in their respective right. that ig to say, the first defendant filed a written statement contending that the property belonged to him and was in his possession in his own right and likewise the second defendant put forward the contention that the property was in his possession in his own right.the trial judge found.....
Judgment:
ORDER

Ramaswami Goundar, J.

1. This is a revision filed by the defendant against the decree of the learned District Munsif in a small cause suit filed against him by the plaintiff respondent herein For contribution. The present plaintiff was the first defendant and the defendant was the second defendant in another suit O. S. No. 69 of 1949 brought against both of them by a third party in respect of land for a declaration of title and injunction. In that suit both defendants 1 and 2 set up title and possession' in their respective right. That ig to say, the first defendant filed a written statement contending that the property belonged to him and was in his possession in his own right and likewise the second defendant put forward the contention that the property was in his possession in his own right.

The trial Judge found against the contentions put forward by both the defendants and decreed the suit in favour of plaintiff with costs payable by both the defendants. In execution that plaintiff recovered the whole of the costs from the first defendant to that suit who is the present plaintiff and so he has filed the present suit to recover from the present defendant who was the' second defendant to that suit his share of the costs. The question is whether the present defendant is liable to contribute his share of the costs. .

The learned counsel for the present defendant who is the petitioner in this revision relied on two decisions, one in -- 'Fakire v. Tasaduq Husain', 19 All 462 (A), and the other in -- 'Muthuswami Aiyar v. Subramania Aiyar', AIR 1932 Mad 146 (B). The learned counsel for the respondent-plaintiff relied on the decision in -- 'Venkata Rao v. Venkayya', AIR 1943 Mad 38 (C). The principle of the decisions is that the liability for contribution will arise if the .liability that was discharged by one of the parties was the joint liability of both.

If on the other hand the liability was theexclusive liability of one, and if that one dischargesthat liability, he cannot turn round and claim contribution as against the other who was not liableat all, though as against a third party both of themmight be liable. In the present case having regardto the contentions put forward by the parties tothis suit in the previous suit and the judgment ofthe court it is clear that court intended the coststo be paid jointly by both the defendants in thatSuit, that is to say, the liability for the costs wasthe joint liability of both the parties to the present suit and so it follows that the decree of thelearned District Munsif was correct and this revision is dismissed with costs.


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