N. M. PARTHASARATHI Vs. V. DHARMALINGAM

JUDGEMENT

(1.) THE first defendant in O.S. No. 91 of 1971 on the file of the Principal Subordinate Judge, Vellore, filed an application under Order 8 -A and Rule 8 of the Civil Procedure Code, praying that a third party notice be issued to defendants 3 to 7 and thereafter, in the course of trial, the question of contribution by them to him on the basis of an alleged indemnity claimed by reason of the petitioner and defendants 3 to 7 being joint co -promisors in a negotiable instrument be decided. That application was dismissed. The short facts are as follows. The petitioner and defendants 2 and 3 (defendant 2 having died, defendants 4 to 7 have been brought on record as his legal representatives) were co -promisors in a promissory note - -executed on 29th May, 1968 for a sum and consideration of Rs. 8,000. There is no dispute about the execution of the suit promissory note by the petitioner and defendants 2 and 3. The plaintiff, having come to Court, has sought for a decree against all the executants on the face of the promissory note. Various defences were raised, the notable defence amongst which is that the monies were not borrowed for purposes of the limited company in which the petitioner and defendants 2 and 3 were directors and that it benefited only the petitioner. It is not necessary to set out in detail the various defences. In the course of the trial, the first defendant, as co -promisor along with defendants 2 and 3, filed the present application under Order 8 -A of the Civil Procedure Code, stating that in the event of a decree being passed in favour of the plaintiff as against all the defendants, he would be entitled to contribution from defendants 2 and 3, as their specific case is that they are not responsible, though they are executants of the suit promissory note, for the payment of the suit amount as they did not benefit by it and their case is that if at all the first defendant -petitioner was the sole beneficiary thereof. As I said, it is not necessary to pursue the defence or analyse the same any further. In the context of the specific plea taken, the first defendant filed the present application. The learned Judge was of the view that the application was misconceived and that it was intended to drag on the proceedings. From the judgment it is seen that no judgment of this Court was brought to the notice of the learned Subordinate Judge. Obviously, he was under the impression that Order 8 -A would not apply to negotiable instruments.

(2.) IN revision, Mr. Srinivasan, Learned Counsel for the petitioner contends that Order 8 -A would enable the Court to issue a third party notice even in cases where the subject -matter of the action is a promissory note. He would rely upon the decisions of our Court in Uthaman Chettiar v. Thiaga raja Pillai, (1955) M.W.N. 799 :, 68 L.W. 810 :, A.I.R. 1956 Mad. 155, that of Panchapakesa Ayyar, J., reported in Uthaman Ghettiar v. Thiagaraja Pillai, (1955) M.W.N. 799 :, 68 L.W. 810 :, A.I.R. 1956 Mad. 155 and that of mine in Muniandi v. Selvarajan : (1968)2MLJ12 . The respondents are not represented by counsel. On the foot of the ratio of the above two decisions it is contended that the lower Court was wrong in having summarily rejected the prayer for the issue of the third party notice.