Decided on June 30,1981



- (1.) This civil revision petition is directed against the order dated 8th April 1981 passed by the learned III Addl. Small Cause Judge, Bangalore, in SC No. 6995/ 1980 rejecting IA No. III filed by the petitioner under R. 1 of Or. VIII-A of the CP Code (hereinafter referred to as 'the Code). The learned Judge has come to the conclusion that in the written statement, the petitioner has raised a plea that he has paid certain portion of the rent as claimed by the plaintiff, to one Sri Venka, tanarayana Iyer and in case it is found that the petitioner defendant is liable for the claim made by the plaintiff respondent, his right to indemnity against Sri Venkata- narayana Iyer be kept open. After filing the written statement and before the case is set down for trial, the petitioner has filed an application under R. 1 of Or. VIII A of the Code, for issuing notice to the 3rd party (Sri Venkatanarayana Iyer). That application is rejected on the ground that the same has not been filed along with the written statement. The learned Judge has placed reliance on the wordings contained in sub rule (2) of R. 1 of Or. VIII A of the Code, which are as follows : "An application for leave to issue such notice shall be filed along with the written statement of the said defendant and be accompanied by a draft of the notice sought to be issued. The notice shall state the nature and the grounds of the claim and when the draft of the same is approved by Court with or without corrections, it shall be served on the third party together with a copy of the plaint and a copy of the said defendant's written statement in the manner prescribed for the service of summons".
(2.) It is contended on behalf of the petitioner that the whole object of Or. VIII-A of the Code, is to avoid multiplication of proceedings and to grant relief against the third party in a suit brought against the defendant; therefore, it is submitted that as long as such a plea is raised in the written statement and an application is filed immediately before the case is set down for trial, no prejudice whatsoever is caused to the plaintiff if such an application is allowed.
(3.) On the contrary, it is contended on behalf of the respondent plaintiff that the wordings contained in sub rule (2) of R. 1 of Or VIII-A of the Code, are clear and there is no ambiguity whatsoever, and as per the wordings therein, it is incumbent upon the defendant seeking indemnity against the third party to file an application along with the written statement and failure to do so, will not enable him to file such an application subsequent to the filing of the written statement and the Court will not be justified in allowing such an application.;

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