R. C. Muniappan v. D. Krishna Pillai — 1991 DIGILAW 102 (MAD)

Judgment :- 1. There is no merit in this Civil Revision Petition besides it being infructuous. It is against an order passed in I.A. No. 39 of 1983, which was an application under Order 8-A of the Code of Civil Procedure filed by the petitioner herein. 2. The first respondent herein filed a suit O.S. No. 405 of 1979 on the file of the Sub Court, Krishnagiri for recovery of Rs. 28,711/- with subsequent interest and costs due on a promissory note dated 24.1.1975 admittedly executed by the petitioner herein for a sum of Rs. 21,000/-. The petitioner had paid a sum of Rs. 200/- on 18.1.1978 and made an endorsement on the promissory note acknowledging the debt. The first respondent alleged that the petitioner did not pay the amount in spite of repeated demands and filed the suit. 3. The petitioner filed a written statement contending that he had money dealings with the first respondent for about thirty years and on 24.1.1975 the arrears of interest worked out to Rs. 10,500/-for which the first respondent obtained a double bond from the petitioner and thus, the promissory note was not supported by consideration to the extent of Rs. 10,500/-. It was alleged in the written statement that on 13.9.1975 the first respondents wife by name Saraswathy received a sum of Rs. 10,000/- from the petitioner and she passed a receipt therefor. It was also alleged that at the time when the endorsement for payment of Rs. 200/- was made on 18.1.1978, the petitioner wanted the first respondent to make an endorsement covering the sum of Rs. 10,000/- paid to the first respondents wife, but the latter said that the entire matter could be settled after the full discharge of the promissory note. The petitioner also claimed the benefits under Tamil Nadu Act 4 of 1938 as amended by Act 17 of 1976 and contended that the promissory note stood discharged. By an additional written statement the petitioner raised a plea that the first respondents wife was authorised to collect the debt from the petitioner and thus she collected a portion of the amount due and passed a receipt. 4. By an additional written statement the petitioner raised a plea that the first respondents wife was authorised to collect the debt from the petitioner and thus she collected a portion of the amount due and passed a receipt. 4. The petitioner filed I.A. No. 39 of 1983 under Order 8-A of the Code of Civil Procedure for impleading the respondents herein as third parties and passing a decree against them directing the first respondent to give credit to the payment of Rs. 10,000/- or directing the respondents to indemnify the same with interest at 9% per annum from 13.9.1975. The second respondent is the son of the first respondent and respondents 3 to 5 are his daughters. Notice was issued to the respondents and counter affidavit was filed by respondents 1 and 2. Respondents 3 to 5 remained absent. In the counter affidavit filed by respondents 1 and 2, it was pointed out that the first respondent being the plaintiff in the suit, could not be treated as a third party under Order VIII-A of the Code of Civil Procedure. It was also stated in the counter affidavit that the petitioner did not pay any amount to the first respondents wife and the receipt produced by the petitioner was a forged one. It was further stated that though the respondents were the legal representative of the deceased Saraswathi they did not succeed to any estate of the lady and any liability on her part would not bind the respondents. It was expressly stated in the counter affidavit that there was no question of indemnity by the respondents. 5. The trial court disposed of the application along with the suit, after recording evidence on both sides. It was found by the trial Court that the receipt alleged to have been issued by Saraswathi was not genuine one and that the petitioner did not prove the alleged payment of Rs. 10,000/- to her. The trial court found against the other contentions raised by the petitioner and granted a decree in favour of the first respondent as prayed for by him. As regards the application, the trial court dismissed it with the observation that the payment alleged to have been made by the petitioner to the first respondents wife having been found against, the direction prayed for by the petitioner could not be granted. As regards the application, the trial court dismissed it with the observation that the payment alleged to have been made by the petitioner to the first respondents wife having been found against, the direction prayed for by the petitioner could not be granted. The trial court went on to observe that the petitioner should only proceed against the estate of Saraswathi and not against the respondents, as no personal liability could be attached to the respondents. 6. The petitioner claims to have filed an appeal in the District Court against the judgment and decree in the suit, he has preferred this revision petition against the order in the I.A. It is contended by learned counsel for the petitioner that the procedure adopted by the trial court in disposing of the suit and the I.A. together, is erroneous in law and the order in the I.A. should be set aside on that ground. The argument is that the trial court ought to have disposed of the application before taking up the suit for trial and pass orders thereon. Reliance is placed on the judgment of Nainar Sundaram, J. in Sebec Polymers and Catons v. Balussery Polymers Private Ltd. . It was held in that case that the court need not adjudicate the controversy between the defendant and the third party at the stage of considering the application under Order VIII-A of the Code of Civil Procedure. It was laid down that the Court was only to find out whether a prima facie case was made out to implead the parties in question and there would be no justification for considering the merits of the case. According to the learned counsel, the procedure adopted by the Trial Court in the present case runs counter to the above decision. 7. There is no substance in the argument of learned counsel. In the first place, the records do not show that any objection was raised on behalf of the petitioner to the hearing of the application along with the trial of the suit. Nor was it contended before me that such an objection was raised in the court below. The petitioner having acquiesced in the procedure followed by the trial court, it is not open to him to contend in the revision petition that the procedure was erroneous. 8. Nor was it contended before me that such an objection was raised in the court below. The petitioner having acquiesced in the procedure followed by the trial court, it is not open to him to contend in the revision petition that the procedure was erroneous. 8. Secondly, the ruling referred to above would only apply to a case arising before the issue of notice under Rule 1 of Order 8-A of the Code of Civil Procedure. Once a notice is issued, and served upon the third party, the latter shall, under Rule 2, of Order 8-A of the Code of Civil Procedure, be deemed to be a party to the action with the same right in respect of his defence against any claim made against him and otherwise as if he had been duly sued in the ordinary way by the defendant. As stated already, in the present case, notice had been served on the respondents and two of them had filed their counter to the application. It is, therefore, futile to contend that the Court below ought not to have considered the merits of the claim made by the petitioner herein. 9. Thirdly, the contention is no longer available to the petitioner as a decree has been passed in the suit on the merits. Any order in this revision petition, even if it is in favour of the petitioner, will not in any manner affect the decree. The challenge against the decree has to be decided only in the appeal said to have been filed by the petitioner in the District Court. The revision petition cannot be heard as if the suit is still pending. The relief prayed for by the petitioner in the application filed by him in the Court below could be considered only if the suit is pending As the suit has been disposed of on merits, nothing survives, in the application. That is why in the beginning I state that the revision petition is infructuous. 10. In any event, there is no merit whatever in the revision petition. The provisions of Order 8-A of the Code of civil Procedure will not apply to the present case. The claim of the petitioner cannot be said to be for contribution from or indemnity by the respondents. The person to whom the petitioner claims to have paid the money died long prior to the suit. The provisions of Order 8-A of the Code of civil Procedure will not apply to the present case. The claim of the petitioner cannot be said to be for contribution from or indemnity by the respondents. The person to whom the petitioner claims to have paid the money died long prior to the suit. The respondents cannot be held personally liable for any claim by the petitioner against the wife of the first respondent. 11. Even the liability of the deceased wife of the first respondent, if any, was not one for contribution or indemnity. If at all, the claim of the petitioner will only be in the nature of damages for tort and not by way of indemnity. In Ramaswamy Pillai v. Angammal 1 it was held by Ramachandra Iyer, O.C.J. that where ‘A’ paid money to ‘B’ believing in his representation that he had authority to bind ‘C’ it would be a plain case of procuring money by false pretences and the claim to recover such amount would in the nature of damages for tort, and not by way of indemnity. The ruling will apply to the present case on all fours. The same view was taken by the same learned Judge in P.S. Pattabhiraman v. Ganapathy Kannappa Mudali and others 2 . In that case, the plaintiff, claiming to be a holder in due course, filed a suit on the promissory note against the sons of the executant without making the original payee party to the suit and the defendants claimed that the original payee and his sons had fraudulently omitted to give credit to various sums paid by them before the assignment of the promissory note in favour of the plaintiff. It was held by the learned Judge that the maker of the promissory note, who was in the position of a principal debtor, not having any right of indemnity against the original payee, would not have any right to proceed against him under O. 8-A Rule 1 of the Civil Procedure Code. It was held that the claim being in the nature of damages could not come within the said provision. 12. Learned counsel for the petitioner placed reliance on the judgment of Alagiriswami, J. in Marudha Pillai v. V.S. Venkatarama Iyer 3 in which the judgment of Ramaprasada Rao, J. in Muniandi v. Selvaraja 4 was referred to and relied on. It was held that the claim being in the nature of damages could not come within the said provision. 12. Learned counsel for the petitioner placed reliance on the judgment of Alagiriswami, J. in Marudha Pillai v. V.S. Venkatarama Iyer 3 in which the judgment of Ramaprasada Rao, J. in Muniandi v. Selvaraja 4 was referred to and relied on. In both the cases it was held that the right of indemnity need not arise out of a contract and it may arise in equity by implication. The learned Judge has distinguished the judgment of Ramachandra Iyer, O.C.J. in Ramaswamy Pillais case 5. The facts of the present case (AIR 1962 Madras 243) and the judgments of Alagiriswami, J. and Ramaprasada Rao, J. will have no bearing in this case. As stated already, the specific plea raised by the petitioner in the additional written statement was that the first respondent had authorised his wife to collect the debut from him and only because of such authorisation, he paid the money to the wife of the first respondent. Thus, the plea raised by the petitioner is one of discharge and not of indemnity or contribution. 13. Learned counsel for the petitioner invited my attention to the judgment f Ramanujam, J. in Rangaswami Gounder v. Ramaswami Gounder 6. The learned Judge held that the provisions of Order 8-A of the Code of Civil Procedure would apply to suits on promissory note. That does not help the petitioner on the facts of the present case. 14. Learned counsel placed reliance on the judgment of Gokulakrishnan, J. in Victory Laminations v. Plastolite Industries. In that case, an application was taken out under Order 8-A of the Code of Civil Procedure for issue of notice to some of the partners of a partnership firm who went out of the firm only after the date of the alleged payment pleaded by the defendant. It was held that there was a case for issue of notice to the proposed parties. That judgment has no relevance to the present case. 15. In all the cases relied on by learned counsel for the petitioner, the question came up for consideration during the pendency of the suit. But, in this case, the suit has been disposed of after recording evidence on merits. That judgment has no relevance to the present case. 15. In all the cases relied on by learned counsel for the petitioner, the question came up for consideration during the pendency of the suit. But, in this case, the suit has been disposed of after recording evidence on merits. If the petitioner wants to challenge the finding against him on the plea raised by him, he has to do so only in the appeal preferred against the decree. He cannot get that finding set aside in this revision petition. So long as the finding stands, the arguments advanced under Order 8-A of the Code of Civil Procedure are futile. 16. There is a peculiarity on the facts of this case. The petitioner makes a claim under Order 8-A of the Code of Civil Procedure only against the legal representatives of the person to whom he claims to have made the payment. One of those persons happens to be the plaintiff in the suit. Strangely, the petitioner seeks issue of notice under Order 8-A of the Code of Civil Procedure to the plaintiff also as if he is a third party. The objection taken by respondents 1 and 2 in their counter affidavit filed in the court below that the application was unsustainable on the face of it against the plaintiff was well-founded. Any claim of the petitioner against the plaintiff would certainly not fall under Order 8-A of the Code of Civil Procedure. Moreover, the prayer in the application filed by the petitioner in the Court below does not fall within the scope of Order 8-A of the Code of Civil Procedure. The first part of the prayer is for a decree against the respondents directing the first respondent to give credit to the sum of Rs. 10,000/-. If at all it would be only a prayer for set off. Thus, the application filed by the petitioner herein in the Court below has to fail on the facts of this case. 17. The Civil Revision Petition has to suffer dismissal and it is hereby dismissed. There will, however, be no order as to costs.