Balmukund Ruia Vs. Bissendoyal - Court Judgment

Chaudhuri, J.

1. This is a suit on hundis. Originally there were two defendants. One of them Bissendoyal got leave to defend on the ground that Baijnath the other defendant had no authority to draw any hundi. An application was then made to me on behalf of Baijnath also for leave to defend, and I made an order on his application, that Pannalal Murarkar who is said to have guaranteed acceptance of the four hundis in suit should be added as a party defendant. It was alleged that the defendant had obtained an indemnity from Pannalal Murarkar and the plaintiff, that he was not to be made liable. I made the order following the procedure which had been adopted in the case of Furness Withy Co., Ld., v. Pickering [1908] 2 Ch. 224. The application for addition of a party was made under Order I, Rule 10(2) which corresponds to the English Order XVI, Rule 11. The present Code provides under Section 128 (2)(e) that rules may be framed relating to procedure, where the defendant claims to be entitled to contribution or indemnity over against any person whether a party to the suit or not. No rules have yet been framed by this Court. In England rules have been framed restricting third party procedure to the cases referred to in Section 128 (2)(e), namely, to cases of contribution and indemnity. The power to add such a party is discretionary, but is widely exercised, even though the addition of new parties may add new issues; but if the plaintiff objects, and serious embarrassment or inconvenience be caused to him, the addition is not effected. The allegations before me make a prima facie case of indemnity. No doubt in addition to the issues as between the plaintiff and the original defendants, if the new defendant is added, new issues will arise as between the added defendant and the original defendants, but after carefully considering the matter I think serious inconvenience will not be caused to the plaintiff, if I safeguard his position by the following provisions: (i) that the issues as between him and the original defendant be taken first; (ii) that no delay takes place in the determination of those issues; (iii) if the plaintiff succeeds in obtaining a decree, such decree is not to be stayed pending the determination of the issues as between the defendants. Learned counsel, Mr. Mitter, who appeared for the plaintiff stated that if those safeguards were provided for, although he objected to the addition of the additional defendant, yet he would not press his objection. The proceeding against the third party so far as the defendants are concerned, is an independent proceeding in which the defendants, who allege a right against the added party, are to be treated as the plaintiffs. I allow the added party to continue on the provisions above mentioned. Costs of this application will be costs in the cause; any additional costs which the plaintiff may have been put to, or may be put to, in consequence of the addition of the third party, are reserved.