MARUDHA PILLAI Vs. V.S. VENKATARAMA IYER

JUDGEMENT

(1.) THE revision petition is by the defendant in O.S. No. 640 of 1967 on the file of the District Munsif Court of Velangaiman at Kumbakonam against the order of the District Munsif dismissing his petition I.A. No. 1501 of 1968 for the issue of a notice under Order 8 -A of the Civil Procedure Code, to a proposed third party. The suit' was for arrears of rent due from the petitioner. The petitioner's case was that he had paid the rent to the plaintiff's brother. After P.W. 1 was examined, the petitioner filed the application which has given rise to this civil revision petition. On behalf of the respondent, it is contended that the dismissal of the petition was correct, because the claim by the petitioner against the respondent's brother is not either for contribution or for indemnity and therefore Order 8 -A, Civil Procedure Code, will not apply. Reliance is placed upon a decision of Ramachandra Iyer, O.C.J., as he then was, reported in Rangaswami v. Angammal : AIR1963Mad243 . There, the defendants pleaded that they had paid certain monies to the plaintiff's husband and claimed partial discharge of the suit claim and followed it up by filing an application under Order 8 -A, Civil Procedure Code, for impleading the plaintiff's husband. The application having been dismissed, a revision petition was filed in this Court and the learned Judge held that if the defendants had made out the case that the plaintiff's husband had authority to receive monies on her behalf they would be successful and if, on the other hand, they failed to do so but were still able to prove that they, in fact, made payment to the plaintiff's husband it would only mean that the plaintiff's husband got the money from the defendants by false pretences and such a claim would be in the nature of damages for tort and that it was not one by way of indemnity. The same reasoning has been adopted by the Andhra Pradesh High Court in the decision reported in Sri Gopal M. and B. Mill v Ranganayakulu, (1966) A.W.R. 214. On the other hand, Ramaprasada Rao, J., in the decision reported in Muniandi v. Selvaraja : (1968)2MLJ12 , has held that in a case where a suit was filed on a promissory note and the defendant contended that he had made payments to the plaintiff's father, the father could very well be added as a defendant under the provisions of Order 8 -A, Civil Procedure Code. The learned Judge relied upon the decision in Eastern Shipping Co. v. Quash Beng Kee L.R., (1924) A.C. 177, and referred to the following passage:

(2.) THIS statement of the law, to my mind, completely covers the facts of this case. The plaintiffs brother, if he had received the money promising to pay it to the plaintiff, is in equity obliged to indemnify the defendant. If he had promised to pay that money to the plaintiff he ought to indemnify the defendant because of the equitable duty arising from that promise. With respect, I adopt the reasoning adopted by the learned Judge. Even in the case decided by Ramachandra Iyer, O.C.J. I do not think, it was necessary to say that the plaintiff's husband had obtained money by false pretences. It can very well be said that he had promised to pay it to his wife, but had not, and, therefore, he was under an equitable duty to indemnify the defendant in that case. I, therefore, hold that in this case there was an equitable obligation cast on the respondent's brother to indemnify the petitioner in respect of the amount he received from the petitioner for payment to the respondent. Of course ,if the petitioner fails to establish that fact, after the respondent's brother is added as a party he has got to fail. But on the facts of this case he is entitled to an order from the Court under Order 8 -A, Civil Procedure Code, in his favour.