1. Plaintiff and defendant here were co-defendants in a suit (O.S. 239/22) decreed against, them with costs on appeal. Plaintiff says he has paid these costs and sues defendant for contribution. The lower Court held that as plaintiff in defending O.S. 239/22 had put forward a document which has been found by the learned appellate Judge to be fabricated he is a dishonest litigant who has no right to contribution. Plaintiff's suit has therefore been dismissed without any finding of fact whether plaintiff paid the costs or not, and without any finding of the amount of contribution to which he would be entitled if his right to contribution were recognized. The question of the right of one defendant to claim contribution from another defendant in respect of costs is an interesting one which, frequently comes before the Courts, and I propose to analyse five rulings of the Madras High Court which have been cited before me. The first is reported in V.V. Vittil Manja v. P.P.K. Kadugochaen Nayar (1884) 7 Mad 89, and is a Bench decision. In that case it was held that a suit for contribution would not lie and in the course of a brief judgment it is stated that though the plaintiff there no doubt acted in collusion with the defendant it was the plaintiff who was:
the real defendant in the former suit, and it was his untrue defence which caused the expense.
2. The second case is reported in Shakul Hameed Alim Sahib v. Ibrahim Syed Sahib (1903) 26 Mad 373 and is also a Bench decision. In that case contribution was ordered, it being held on a consideration of the relative positions of the parties that the defence in the former suit of the plaintiff there claiming was consistent with that of the defendants from whom he sought contribution and was in fact dependent upon their case. The next decision was that of a single Judge (Kumarasawmi Sastri, J.). It was reported in Chelamiah v. Surayanarayan Jugapathi 1920 Mad 579 and is strongly relied upon by the Small Cause Court. That was a case of a suit against two trespassers. It was held that as the two men joined together and committed a trespass they were joint tortfeasors, and no suit lay for contribution.
3. In Narayanamurthi v. Chandrayya 1927 Mad 790 is another decision by a single Judge (Waller, J.). The original suit there was upon a pronote and the claim for contribution was not only for costs but for the amount of the decree also. The defence was that the money borrowed under the pronote was. borrowed for a partnership which was illegal. Waller, J., held that the plaintiff had a prima facie right for contribution on the mere production of the-decree and of proof that he had satisfied it, and that defendant could not defeat his claim by setting up his own delinquency in joining with plaintiff in an-illegal partnership. Contribution was-accordingly ordered. The last case is a-decision of Curgenven, J., reported in Muthuswamy Ayyar v. Subramania Ayyar 1932 Mad 146. It was held in that case that no suit for contribution lay, and the facts were that the plaintiff was a landlord and the defendant his tenants, the plaintiff alone defended the suits, the tenants remaining ex parte, and that:
the course which plaintiff took was in no way affected by the fact that his lessees were impleaded as co-defendants.
4. The tenants had no interest in the-subject-matter of the suit which was-one of title. Before applying these rulings to the present case it is necessary to state one further very important fact. It is this: the plaintiff and defendants filed a joint written statement in O.S. 239/22 and that both relied upon the forged document. No doubt the District Munsif here characterises plaintiff' as a 'Court bird' and says that he appears to be the cause of the unrighteous litigation' which was against-him, but he nowhere gives any finding, of fact that defendant was not equally aware of and did not equally seek the benefit from the forgery. Nor was any such finding apparently possible since defendant's learned advocate has been unable to refer me to any single fact or sentence in the judgments in the former suit which distinguishes in any way the culpability of the two men. Those being the relative positions of plaintiff and defendant it will be seen at once that. V.V. Vittil Manja v. P.P.K. Kadugochen Nayar (1884) 7 Mad 89 and Muthuswamy Ayyar v. Subramania Ayyar 1932 Mad 146 cannot be applied to this case.
5. The other three cases are cases where-plaintiff and defendant stand on the same footing and to that extent can be applied. In Shakul Hameed Alim Sahib v. Ibrahim Syed Sahib (1903) 26 Mad 373 however no question of culpability arises. There femain Chelamiah v. Surayanarayana Jugapathi 1920 Mad 579 and Narayanamurthi v. Chandrayya 1927 Mad 790 which come nearest to the facts in this case. Of these I prefer with respect to follow the latter. Not only does Chelamiah v. Surayanarayana Jugapathi 1920 Mad 579 deal with a suit for trespass in which a tort committed jointly by the defendants forrised the cause of action (which is not the case here), but in Narayanamurthi v. Chandrayya 1927 Mad 790 there is laid down what I think should be the principle governing all such cases of equal delinquency, and as defendant can succeed here only by urging the facts of the forged document and fraudulent defence plaintiff's right to contribution must be upheld.
6. I may mention briefly that three rulings were also cited from Allahabad. In Parbhu Dayal v. Dwaraka Prasad 1932 All 334 the right to contribution was negatived but that again was definitely a case arising from a suit in tort. In Mulla Singh v. Jagannath Singh (1910) 32 All 585 and Nand Lal Singh v. Beni Madho Singh 1918 All 328 where again the right was negatived the positions of the co-defendants were contrasted. There is thus nothing in the three Allahabad rulings which would affect the decision in Narayanamurthi v. Chandrayya 1927 Mad 790. I accordingly allow this petition, set aside the lower Court's decree and direct that the suit be restored to file and disposed of according to law after findings to be recorded on the issues whether plaintiff has satisfied the decree, and if so, to what amount he is entitled. The parties may adduce what evidence they wish on these issues. Costs of this petition to abide the event.