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K. Muniandi Vs. Selvarajan and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1968)2MLJ12
AppellantK. Muniandi
RespondentSelvarajan and anr.
Cases ReferredUthaman Chettiar v. Thiagaraja
Excerpt:
- .....j. in uthaman chettiar v. thiagaraja, pillai (1955) m.w.n. : (1955) 68 m.l.w. 810 : a.i.r. 1956 mad. 155, in suits concerning negotiable instruments, an objective test has to be applied and it has to be found out whether the party intends to take advantage of order 8-a only to waste the time of the court by unnecessary third party notices. but he has categorically held in the earlier portion of his judgment that in suitable cases third party notices can be issued even in suits on promissory notes. i am of the opinion that the instant case is one such suitable case. the mere fact that the first defendant can institute an independent action, by itself cannot be a basis to dismiss the application by him to implead a third party, who is none else than the father of the plaintiff in the.....
Judgment:

T. Ramaprasada Rao, J.

1. The defendant in the suit applied under Order 8-A Civil Procedure Code, for impleading the father of the plaintiff as the second defendant to the suit. The suit itself was one on a promissory note. The defence was that it was taken in terrorem, not supported by consideration, and that a portion of the amount due and payable under the said promissory note was already recovered by the proposed party, viz., the father, and that such amounts have to be given credit to by the plaintiff, the son. It is seen from the records that the written statement was signed by the Advocate for the defendant on 27th November, 1965, but the third party application was taken out on 10th March, 1966. The learned District Munsif, in his order, states that there is no specific allegation in the written statement that amounts were paid by the first defendant to the proposed party and that they were paid towards the suit pronote. But on a fair reading of the allegations in paragraph 14 of the written statement this factual statement of the lower Court in its order is not fully supported. One other point which was uppermost in the mind of the lower Court, in disallowing this application under Order 8-A was that the first defendant may have an independent cause of action against the proposed party resting his case on the allegations made in the written statement, but he ought not to impose another party defendant to the suit against the will of the plaintiff.

2. It is no doubt true that in civil litigations the plaintiff is the dominus litus. But Order 8-A appears to be an exception to this broad principle of procedure Order 8-A, in fact prescribes a special method by which a party defendant could secure relief without independently filing a suit against a third party to the suit, if he makes out a case that such third party is bound to indemnify him in connection with the suit transaction. Further, in my opinion, if the party, who is legitimately entitled to press into service Order 8-A, were to be driven to an independent suit, there is likelihood of a conflict of decisions as well, not to speak of multiplicity of proceedings. It is essentially to avoid such conflict and multiplicity that Order 8-A has been provided, particularly in a very detailed way in our State.

3. Learned Counsel for the petitioner states that this is a fit case in which Order 8-A may be attracted to the advantage of his client. His case, inter alia., is that he has paid certain amounts either in cash or in the shape of jewels to the father of the plaintiff, in liquidation of the promissory note debts, and the father not having accounted for the same either by instructing his son to give credit to it or otherwise, he is entitled, in the suit instituted by the son without reference to such payments, to implead the father and obtain contribution or indemnity from him in equity. That such a party placed in similar circumstances is entitled to implead the third party to a suit under Order 8-A and claim indemnity from him is clear from the ratio of the decision in Rudrappa Chetti v. Narasimha Chetti : AIR1965Mad495 . Anantanarayranan Officiating C.J. (as he then was) observed as follows at pages 161 and 162:.Any later suit that might have to be filed by the defendant against the original mortgagee, in case the present suit by the plaintiff (assignee) succeeds, might well be brought within the scope of an action for ' indemnity'. The expression indemnity has to be interpreted broadly and would mean claims to indemnity as such either at law or in equity.

4. While respectfully adopting the observations of the learned Judge, it is apposite also to refer to the meaning of the expression ' indemnity' as found in Eastern Skipping Company v. Quash Beng Kee L.R. (1924) A.C. 177. Their Lordships observed in the above cited case:

A right to indemnity exists where the relation between the parties is such that either in law or in equity there is an obligation upon the one party to indemnify the other. There are, for instance, cases in which the state of circumstances is such that the law attaches a legal or equitable duty to indemnify arising from an assumed promise by a person to do that which, under the circumstances he ought to do.

5. The principle has also been very succinctly put in the Annual Practice, 1965. Volume I, page 322 in the following terms:

In effect a claim to contribution is a claim to a partial indemnity. Contribution is bottomed and fixed on general principles of justice and does not spring from contract, though contract may qualify it.

6. On an examination of the general principles laid down and set out as above, it is clear that 'indemnity' referred to in Order 8-A need not necessarily spring from contract. It can be spelt from the circumstances; but each case has to be decided on its merits. As pointed out by Panchapakesa Aiyar, J. in Uthaman Chettiar v. Thiagaraja, Pillai (1955) M.W.N. : (1955) 68 M.L.W. 810 : A.I.R. 1956 Mad. 155, in suits concerning negotiable instruments, an objective test has to be applied and it has to be found out whether the party intends to take advantage of Order 8-A only to waste the time of the Court by unnecessary third party notices. But he has categorically held in the earlier portion of his judgment that in suitable cases third party notices can be issued even in suits on promissory notes. I am of the opinion that the instant case is one such suitable case. The mere fact that the first defendant can institute an independent action, by itself cannot be a basis to dismiss the application by him to implead a third party, who is none else than the father of the plaintiff in the suit, as second defendant in the action. This is the only criterion on which the lower Court rested its conclusion. The order of the lower Court is, therefore, set aside, on the ground that it has not properly exercised its jurisdiction while considering the scope of Order 8-A.

7. The civil revision petition is therefore, allowed with costs.


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