RAMASWAMI PILLAI Vs. ANGAMMAL

JUDGEMENT

(1.) THIS revision arises from the order of the District Munsif, Palni, in I. A. No. 706 of 1959 (O. S. No. 405 of 1957), refusing to issue a third party notice to Mariappa pillai and Thangaraju. The petition was for the issue of third party notice under order VIII-A of the Civil Procedure Code by the defendants in the suit instituted by angammal, the first respondent, for recovery of a sum of Rs. 1285. 40 nps. , from the petitioner herein as due to her on dealings. The petitioners (defendant's) pleaded that they had paid certain moneys to the husband of Angammal, one Mariappa Pillai, and claimed a pro tanto discharge of the suit claim. They followed up their written statement by filing the application under Order VIII-A C. P. C. , for impleading Mariappa Pillai and his agent, thangaraju as third party defendants, claiming that in case they were unable to prove that the payment made to those persons were binding on Angammal they would be entitled to an indemnity from those persons. The learned District Munsif rejected the application.

(2.) MR. Ramamurthi, learned counsel for the petitioner, contends that, in substance, the claim of the defendants against Mariappa Pillai and Thangaraju was one on an indemnity and that, therefore, the third party notice should issue, I am unable to agree. The case of the defendants was that Mariappa Pillai and thangaraju had authority from Angammal to receive the monies and did receive such monies from the petitioners. If they make out their case, payments made to these persons will be binding on Angammal. If, on the other hand, they fail to make out that case, but still are able to prove that they, in fact made payments to mariappa Pillai and Thangaraju it would only mean that those two persons got the monies from the petitioners by false pretences namely that they had authority of angammal to get the moneys while in fact, they had no such authority. Such a claim would be in the nature of damages for tort. I cannot see how it can be said that the claim is one by way of indemnity.

(3.) COUNSEL, however, relies upon a passage in Bowstead on Agency, 12th Edn page 273 and on a decision of the Allahabad High Court reported in Kedarnath v. Hargoving, AIR 1926 All 605. In Bowstead on Agency at page 273 it as stated that