PARASMAL CHORDIA Vs. RAJALAKSHMI AMMAL

JUDGEMENT

(1.) THIS petition is directed against an order of the Subordinate Judge of Cuddalore dismissing an application of the petitioner made under Order 8 -A, Rule 1, Civil P. C. The suit was laid on a promissory note said to have been executed by the defendant who is the petitioner, on 21 -6 -1964. He resisted the suit on the ground that the promissory note was not supported by consideration, and also maintained that the plaintiffs son had executed an agreement or varthamanam of 4 -7 -1964, admitting that the promissory note was not supported by consideration and that, in case, it was successfully enforced, he would indemnify the defendant. Evidently, on the basis of the last averment, the defendant took out the application under Order 8 -A for third party notice to the son of the plaintiff. The application was dismissed by the Subordinate Judge, by placing reliance on Uthaman Chettiar v. Thiagaraia Filial, 68 Mad LW 810 : AIR 1956 Mad 155 Panchapakesa Ayyar. J. was of the view, in that case, that the third party notice procedure should not be applied to suits on negotiable instruments.

(2.) WITH due respect to the learned Judge the limitation placed by him does not appear to be justified by the language of Rule 1 of Order 8 -A. The order relates to third party procedure and the first rule says that where a defendant claims to be entitled to contribution from or indemnity against any person, not already a party to the suit, he may, by leave of the Court, issue a notice, called a third party notice, to that effect. That simply means that where in a suit the defendant, in case the plaintiff succeeds, is entitled to indemnity from a third party, who has not been already brought on record, he is entitled to ask for a third party notice. There is nothing in the rule suggesting that it has no application to suits on negotiable instruments.

(3.) THE further contention for one of the respondents is that Order 8 -A itself will be attracted only in cases where a defendant admits liability on the main transaction sued upon. Support is sought to be derived, for this contention, from Rule 3 of Order 8 -A. This rule only states that if the third party desires to defend himself he may do so; but, if he does not enter appearance, he shall be deemed to admit the validity of the decree against the defendant and his own liability to indemnity to the extent claimed in the third party notice. This does not mean that Rule 3 limits the scope of Rule 1 so as to make it applicable only to cases where the suit claim is admitted.