- (1.) THIS is appeal by the original defendants against the order made by the Mr. Justice K. K. Desai directing the defendants to pay court -fee on the third party note taken out by them against the second respondent. On 5th September 1959 the second respondents entreated into a contract with the first respondents who are the original plaintiffs, for the supply of manages are to the plaintiffs. The contract provided that the material shall be re - routed through the state Trading corporation of the India ltd. I. e. through the defendants. On these day the appellants defendants entered into a contract with the first respondents for the supply of managers are to the first respondents. The appellants also entered into a contract with the first respondents for the supply of manganese are of the in first respondent. The appellants also entered into a contract with the second respondents, who agreed to supply the manages are to the appellants. The arrangements arrived to the therefore was that the second respondents were to supply manganese are to the appellants who had to consign it to the first respondents. According to the first respondents the goods supplied to them were not of the proper quality and there was also short deliveries. On 23rd September 1963 the first respondents therefore filed a suit against the appellants in which they claimed about Rs. 7, 75, 000 from the appellants. On 27th November 1963 the appellants obtained leave from the second respondents and to serve it upon them. This leaves was applied for and grated under Rules 151 of the High court Original side Rules. By this notice the second respondents were informed the same relieves, which had been claimed from the appellants by the first respondents. The notice also stated. "the defendants say that the following question or issues relate to or are connected with the original subject matter of the above suit and are original subject the matter of the above arising the between the plaintiff and the defendants same should property be determined on only as between the plaintiff and the defendants but as between the plaintiff and defendants but as between the plaintiff defendants and yourselves. (i) Whether the said consignment of the Manganese are shipped is per S. S. "older" in July 1960 was deficient in quantity and quality as alleged by the plaintiffs in the plaint and you thereby committed a breach of the alleged contract No, 90/1959. (ii) whether the your committed fraud, miss- respondent of deceit as stated by the plaintiff in the suit. (iii) Whether the damages for the aforesaid breach of contract mentioned in [i] hereof come to the said sum of Rs. 2,49, 455. 49 NP. As per particulars mentioned in Ex. G to the plaint and the said further sum of Rs. 16, 609 with interest on the aforesaid sums at the rate of 6 per annum from the date of the suit till judgment. (iv) Whether you failed to ship the remaining quantity of the manganese are by the end of November 1960 and thereby committed a breach of the said alleged contract No. 90/1959. (v) Whether under the circumstances stated in sub = paragraph [iv] above you are liable to return to the defendants the said sum of the Rs. 5,77,128. 68 np being the price paid in the advances on behalf of the defendants to your under the contract No. 99/1959 with interest thereon at 6 per cent per annum from the 6th day may 1960 till payment. (vi) Whether you are liable to the pay to the defendants the cost that the defendants may have to pay to the plaintiff in suit and the costs incurred by the defendants in defending the plaintiff claims in the suit as also of the Third party proceedings. " The notice further stated that if the second respondents wished to disputed the plaintiff claim in the suit against the defendants or their liability to the defendants or it they wished to the be hears on the said question or issued or on the defendants liability to the plaintiff or the liability of the second respondents to the defendants then they should causes an appearances to the entered should without eight days fro the service of the notice. The second respondents were further informed that is default of their doing so they would be might be passed against the do any decree that might to passed against the defendants the compensation to the defendants to the extent therein specified. On 17th January 1964 the second respondents filed their appearances. On 5th February 1964 the appellants took out a summons for directions under Rules 154 of the Original side rules. This summons camp up of the for hearing before my learned brother. He directed that a notices should be served on the state government for consideration of the point whether court fees were payable on the third party notices. The summons was thereafter heard by Mr. Justice K. K. desai. He come to the conclusion of that the court =- fee were payable to accordingly directed to the appellants to pay court - fees in the respect of the Third Party notices, in the respect of the Third party notice which the had been issued to the second respondents. Against that order the presents appeal has been filed.
(2.) MR. Mistree, learned counsel of the appellants has contended that the Third party notice is issued by the court , that it bears the seal of the issued court that the is consequently it is only a process issued by the court that the it is not a pleading of any party and that consequently no court = fee is payable is respect of it. In order to determine the validity of these arguments, it is necessary to consider of the relevant provision of the rules. The provisions in regard to the Third Party procedure are contained in Chapter IX of the Original are contained in the rule (1) of Rule 151 in the following terms 151 (1) where is suit a defendants claims as against the any person not already a party to the suit (hereinafter called the third party) - (A) that his entitled to contribution or indemnity, or. (B) that he is entitled to any relief or remedy relating to or connected with the original subject - matter of the suit and substantially the same as some relief or remedy claimed by the plaintiff or (C) that any question or issue relating to or connected with the said subject = matter is substantially the same as question or issue and arising between the plaintiff and the defendants sand should property be determined not only as between the plaintiff and the defendants but as between the plaintiff and the defendants or the third party or between any or either of them. He may be leave of the court or a judge issue a notice [here in after called the third party notice] to that effect sealed with the seal of the court. Such noticed shall be field with the prothonotary and senior mast and copy there of served on such person accordingly to the rules relating to the services of writs of the summons" the third party procedure can therefore be adopted when the defendants claim from the adopted when the defendants claims third party an indemnity or contribution of the some the relief connected with the original some other relief subject matter of the suit or when common question of and arises of the between or the plaintiff and the defendants and between the defendants and the third party, or when any question arising between the plaintiff and the defendant can property be determined as between the plaintiff and the defendants can and third party. Before this procedure can be adopted it is necessary to obtain leave of the court. Sub rule (2) of Rule 151 states of that the notice shall state the nature an grounds of the claim or the nature and the extent of the relief or remedy claimed or the nature of question or issue sought to the determined and that such notice shall to the form No. 13 or the No. 14 with such variations as circumstances may require. The defendants had therfore to the state of the made to him but also the grounds on the which is his claims based. He had therefore to give the particular so his claim in the notice. Sub = rule (3) of Rule 151 provides: ' (3) The third party shall as from the time of the service upon him of the notice, be a party to the suit with the same rights in respect of his defense against as any claim made against him defense against any claim made duly sued him in ordinary way by the defendants. After the service of third party notice upon him, a third party therefore becomes a party to the suit between the plaintiff and defendants. He is also entitled to raise all defendants to the claim made against him by the defendants of which he could have urged if instead in the taking out a third party notice the defendants had filed a suit against him.
(3.) RULE 152 States that in the default of the third party entering an appearance, he shall be deemed to admit the validity of the decree obtained against the defendants and his own liability to contribute or indemnify as the case may be the extent claimed in third party notice Rules 153 provided claimed that when a third party marks a default in entering an appearance in the suit in case the suit is tried and results in favor of the plaintiff as judge who tries the suit may pass such decree as the nature of the case may require for the defendants giving the notice against the third party.;