Decided on July 27,1967

BANSILAL Appellant
DULICHAND Respondents


Shiv Dayal, J. - (1.) THIS second appeal arises from a suit for the recovery of Rs. 2,000/ - as damages for battery. The Appellant's case was that because of previous ill -will and strained relations between the parties, Dulichand (Defendant No. 1) and Ganesh (Defendant 2) appeared at the place where the Plaintiff was cutting his grass. Defendant 1 gave a severe lathi blow on the Plaintiff's head, while Defendant 2 struck his lathi on the Plaintiff's left arm as a result of which Plaintiff fell down. The first Defendant dealt another forceful lathi blow on the Plaintiff's left arm and yet another blow on the ribs. The Plaintiff averred that he was again given many more lathi blows by the Defendants. He became unconscious as a result of Defendants' grievous assault. The suit was resisted by both the Defendants. The trial Court passed a decree for Rs. 500/ - in favour of the Plaintiff against both the Defendants and dismissed the rest of the claim. On the Defendants' appeal the learned Additional District Judge dismissed the suit. The Plaintiff preferred this second appeal against both the Defendants (Respondents 1 and 2).
(2.) GANESH (Defendant 2) died in the year 1964. The appeal has abated so far as he is concerned. Mr. S.C. Pandey, learned Counsel for the surviving Defendant, Dulichand, contends that the appeal has abated in its entirety. Mr. P.C. Verma, learned Counsel for the Appellant, relies on 5". Chatterji v. Dr. T.B. Sarwate : A.I.R. 1960 M.P. 322. In my opinion, the preliminary objections must be rejected. It is clear law that all persons acting unlawfully in pursuance of a common end are held liable for the entire result. In Raydon's case 77 E.R. 1150 (1151) it was held: All coming to do an unlawful act, and of one party the act of one is the act of all of the same party being present. Therefore, on the plaint allegations, each of the Defendant would be liable for the entire damages, even if only one committed the battery. The liability of the joint tortfeasors is joint and several for the whole damage and the person injured may sue all or any of them severally for the whole loss, or all of them jointly in the same action.
(3.) IN the case of two joint tortfeasors, if the amount of damages is recovered from one of them, he is entitled to contribution from the other. The rule in Merryweather v. Nixan, (1799) 8 T.R. 186 was modified in its application even in England. The precise scope of that rule was never clearly and uniformly formulated. Lord Herschell, L.C. in Palmer v. Wick and Pulteney Town Steam Shipping Co., (1894) A.C. 318 (324), observed that the rule did not appear to him to be founded on any principle of justice or equity, or even of public policy. There was certainly a tendency to limit its application. The rule did not extend to wrongful acts done by mistake in ignorance of their real character. Now, the rule is no longer law in England since the enactment of the Law Reforms (Married Woman and Tortfeasors) Act, 1935. In our country, the trend of decisions regarding the applicability of the rule in Merryweather (supra) has not been uniform. So far as this Court is concerned, there is a direct authority in Khushalrao v. Baburao, I.L.R. 1942 Nag. 1 where Sir Gilbert. Stone C.J. speaking for the Court, after an elaborate discussion, observed that the rule in Merry -weather does not apply in India.;

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