RAJAGOPALA IYER Vs. THATHAYYA ARUNACHALA IYER

JUDGEMENT

(1.) In Small Cause Suit No. 1494 of 1919 on the file of the Court of the Subordinate Judge of Tanjore plaintiff sued for contribution. In O.S. No. 409 of 1906 on the file of the Court of the District Munsif of Tiruvadi he was sued as defendant No. 6 along with defendants, deceased father of the present defendant Nos. 3 to 8 and defendants Nos. 1 and 2 who are also defendants Nos. 1 and 2 in this suit. The costs were recovered from plaintiff and he sues for contribution. The lower Court has dismissed the suit on the ground that defendants Nos. 2, 5 and 6 in O.S. No. 409 of 1906 were joint tort feasors, and plaintiff files this petition for revision (1 defendant pleaded payment and the point was found against him).

(2.) There is authority for holding that there can be no decree for contribution among joint tort feasors. Vide Manja V/s. Kadugochen (1883) I.L.R. 7 M. 89, Gobind Chunder Nundy V/s. Srigobind Chowdhry (1897) I.L.R. 24 Cal. 330 though that authority is shaken by the observations of Lord Herschell in Parlmer V/s. W.P. Steam Shipping Co. L.R. 1894 A.C. 318 quoted in Siva Panda V/s. Jujusti Panda (1901) I.L.R. 25 M. 599 at 602. However, assuming that the authority holds good, there remains the question of fact whether these defendants in O.S. No. 409 of 1906 are proved to have been joint tort feasors.

(3.) The second defendant actually pleads in his written statement that he made a fraudulent defence, but that plea has no evidentiary value, and can be ruled out on the principle nemo allegens turpitudinem suam est audiendus.