KESHAV VITHAL OLTIKAR Vs. HARI RAMKRISHNA OLTIKAR

JUDGEMENT

(1.) The question which arises in these applications under Section 25 of the Provincial Small Cause Courts Act, is whether, in the circumstances of the case, the plaintiff was entitled to contribution against the defendants with regard to the amount of costs which he had paid in a suit filed by one Krishnaji Mahadeo Ghate for possession by partition of his one-sixth share in certain property against the petitioner and his brothers, all of whom had to pay plaintiff's costs in those proceedings. The present plaintiff now seeks to recover by contribution from his co-defendants their shares in the costs in that suit, which he had paid to the successful plaintiff.

(2.) The learned Judge relying on the decision in Mulla Singh V/s. Jagannath Singh (1910) I.L.R. 32 All. 585 dismissed the plaintiff's suit. He thought all the defendants were equally guilty in defending the proceeding brought by Krishnaji Mahadeo, and therefore, according to the principle laid down in that case, the plaintiff had no equity against the present defendants. .

(3.) No case has been decided in this Presidency where the point has been raised, and for that reason I granted the rules on these applications. We have been referred to the decision in Mahabir Prasad V/s. Darbhangi Thakur, (1919) 4 P.L.J. 486 in which case the facts were somewhat similar, the plaintiff having brought a suit for a declaration that by reason of a previous partition, which still subsisted, the property in suit was not liable to be again partitioned. The defendants contested the claim, pleading that there had been no previous partition. That defence failed, and the suit was decreed with costs against all the contesting defendants jointly and severally. The decree was executed and costs were recovered against one of the defendants. He then instituted a suit to recover from his co-defendants their proportionate share of the costs recovered from him under the decree. The real issue seems to have been obscured by the defendants being allowed to raise an issue in the trial Court whether the plaintiff and defendants in the previous suit had been joint wrong-doers in so far as the defence in that suit was concerned. It appears to have been suggested that when several co- defendants joined in a defence which failed, that thereupon they became joint tort-feasors, in which case according to the English authorities one tort-feasor would not be entitled to contribution against the others. But, as pointed out by the learned Chief Justice, such a suggestion was not applicable to that case. His Lordship said (p. 493): - To hold that it is a tort for the defendant by his pleadings to deny a fact which he knows to be true, even if he has no evidence to the contrary, is a proposition which cannot be supported on any known principle of law. It follows, therefore, that on the facts found by the lower Court the parties were not wrong-doers in the sense which would debar contribution between them.