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V.M. Chockalingam Chettiar Vs. T.A.S.V. Alagammai Achi and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 1279 of 1952
Judge
Reported inAIR1953Mad927; (1953)1MLJ806
ActsCode of Civil Procedure (CPC) , 1908 - Order 8A, Rule 8
AppellantV.M. Chockalingam Chettiar
RespondentT.A.S.V. Alagammai Achi and anr.
Appellant AdvocateP.S. Chandrasekhara Ayyar and ;P.S. Ramachandran, Advs.
Respondent AdvocateT.R. Srinivasan and ;T. Ramalingam, Advs.
DispositionRevision allowed
Cases ReferredVenkatakrishna Naidu v. Narayanaswami Iyer
Excerpt:
- - srinivasan, however, is that the application of the third party procedure to the circumstances of this case is calculated to involve his client as well as the court in embarrassment for the reason that that would result in the joinder of what substantially would be two suits between two different parties in one and the same trial and that it would also have the effect of prolonging the disposal of his own suit as against defendant 1 which would without this application of the third party procedure be a simple suit for recovery of money deposited with defendant 1 in the name of his client......an application made to the court below to enable defendant 1 to avail himself of the third party procedure provided under order 8-a, civil p. c. the application having been rejected by the court below, defendant 1 has come up in revision to this court.2. mr. p. s. chandrasekhara ayyar, learned advocate for the petitioner, has contended in the first instance that the main reason given by the court below for its order under revision is that defendant 2 was already a party to the record and therefore the procedure prescribed by order 8-a did not apply to the case. this, it is common ground before me proceeds upon a mistake about what order 8-a, civil p. c. provides; for, while where a person against whom a third party procedure is sought to be availed of is not already a party to.....
Judgment:

Raghava Rao, J.

1. In a suit for recovery of certain money of the plaintiff alleged to have been deposited with defendant 1, defendant 1 pleaded in his written statement that the money deposited with him was really defendant 2's money and not the plaintiff's and that as the money had been deposited on the understanding that the money was to be payable to defendant 2's order, defendant 1 Had already obtained full discharge in respect of the obligation which the plaintiff sought to enforce by the adjustment of the said money between defendant 2 and himself towards the debts due by defendant 2 to defendant 1. There was thereafter an application made to the Court below to enable defendant 1 to avail himself of the third party procedure provided under Order 8-A, Civil P. C. The application having been rejected by the Court below, defendant 1 has come up in revision to this Court.

2. Mr. P. S. Chandrasekhara Ayyar, learned advocate for the petitioner, has contended in the first instance that the main reason given by the Court below for its order under revision is that defendant 2 was already a party to the record and therefore the procedure prescribed by Order 8-A did not apply to the case. This, it is common ground before me proceeds upon a mistake about what Order 8-A, Civil P. C. provides; for, while where a person against whom a third party procedure is sought to be availed of is not already a party to the record he has to be impleaded on an application to be made for that purpose, it does not, in my opinion, follow that the third party procedure cannot be availed of as against a person already on record. This ground given by the learned Subordinate Judge in fact has not been supported or rather seriously supported by Mr. T. R. Srinivasan, learned advocate for the respondent, in view of Order 8-A, Rule 8, Civil P. C. The point pressed by Mr. Srinivasan, however, is that the application of the third party procedure to the circumstances Of this case is calculated to involve his client as well as the Court in embarrassment for the reason that that would result in the joinder of what substantially would be two suits between two different parties in one and the same trial and that it would also have the effect of prolonging the disposal of his own suit as against defendant 1 which would without this application of the third party procedure be a simple suit for recovery of money deposited with defendant 1 in the name of his client.

Learned counsel points out that the third party procedure ought not to be applied by a Court ordinarily in cases where its application would have this effect. As pointed out by Venkatarama Rao J. in -- 'Venkatakrishna Naidu v. Narayanaswami Iyer', AIR 1939 Mad 172 (A), the considerations governing the application of the third party procedure to any particular case are substantially similar to those considerations which influence the discretion of the Court in impleading parties under Order 1, Rule 10, Civil P. C. Agreeing with this view of the matter which J myself expressed in the course of arguments, I am of opinion that what I have to see is whether the joinder of the claims in question, that is to say, between defendant 1 and defendant 2 on the one hand and the plaintiff and defendant 1 on the other, would be so far improper if really they were claims litigated in two different suits separately instituted. Applying this test, as in my opinion a proper test applicable to the class of case before me, I am of opinion that this was preeminently a case in which the Court below ought to have exercised its discretion in favour of allowing the application of defendant 1. As pointed out by the learned advocate for the petitioner before me, there is at least one common question which would arise as between the two claims which would get combined for trial if Order 8-A, Civil P. C. were to be applied to the present case, viz., whether the moneys in question originally deposited by defendant 2 belonged to the plaintiff or belonged to defendant 2 or were merely placed in the name of the plaintiff with defendant 1. Were the suit of the respondent before me a suit on a negotiable instrument, different considerations might possibly arise. But all that Mr. Srinivasan, learned advocate for the respondent, has urged is that his simple suit for recovery of money on deposit with defendant 4 would get enlarged in Its scope by the addition to the record of the pleadings as between defendant l and defendant 2 and by the issues that might be consequential upon those pleadings. As I have already stated, that in my opinion, is not a ground for refusal of the application of Order 8-A, Civil P. C. to a case otherwise appropriate.

3. For the reasons given by me, it follows that this revision must be allowed. In the circumstances of the case, there will be no order as to costs so far as this Court is concerned.


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