SAIDALIKUTTY HAJI Vs. KUNHI POCKER

JUDGEMENT

(1.) The plaintiff is the revision petitioner. He sued the defendant for recovery of Rs. 145-56 Ps. based on an agreement to reimburse him in respect of the amounts paid which the defendant was bound in law to pay. Granite stones were quarried from the plaintiff's property by the plaintiff jointly with the defendant who is a contractor and one Chanthuruthy Mohammed, who was in actual occupation of the property as lessee. Quarrying of stones for commercial purposes without permit is prohibited by statute. Action was, therefore, taken against all the three and by proceedings of the Collector of Kozhikode K. Dis. 20020/64 dated 30-9-64, a fine of Rs. 375/- was levied on them payable jointly and severally as provided in R.22 of the Madras Minor Mineral Concession Rules, 1956. The Plaintiff who is the registered owner of the land was proceeded against first for the recovery of the fine, and when attachment was taken out he paid the entire Rs. 375/- and got a discharge. According to him at the time of payment, the defendant and Chanthuruthy Mohammed had agreed to reimburse him to the extent of their liability, viz., Rs. 125/- each. It is for recovery of the amount due from the defendant with interest thereon that the suit was laid. The liability was denied by the defendant. He stated that no quarrying was done by him from the plaintiff's property. He also stated that his share of the amount was made good by him already to the plaintiff, at the time the recovery proceedings were taken by the authorities against the plaintiff. The alleged agreement was also denied. Learned Munsiff finding that there was no evidence in support of the agreement which is the foundation of the liability has dismissed the suit.

(2.) Before me the argument put forward was that the suit has to be construed as one for contribution by joint tortfeasor and under the law in India a joint tortfeasor of this type cannot claim contribution. The scope of the liability of the joint tortfeasor for contribution has carefully to be examined in the present context. Two or more persons may become joint wrongdoers, (a) by committing a tort in concert, or in pursuance of an unlawful conspiracy; and (b) by the principle of vicarious liability. In the present case it must be presumed that the plaintiff, defendant, and Chanthuruthy Mohammed had joined together and committed the tort in concert.

(3.) In India, judicial opinion is divergent on this matter. The Allahabad High Court in Naval Kishore v. Rameshwar (AIR 1955 All 594) has ruled that the Law Reform Act is not applicable to India, both because it is the statutory law of England and not of this country and also because it does not appear to be based necessarily on any principle of equity, justice and good conscience. Under the Act it was provided that in a later Act damages should not in the aggregate exceed the amount given in the first action. This principle was rejected by the Allahabad High Court in the above case.