D. Venkatachalapathi vs Surya Prakashrao and Others

Satyanarayana Raju, J.—In this revision petition an interesting question as to the construction of Order 8A, CPC added in Madras by an .amendment dated 21st of August 1951) has been raised.

Order 8A, Rule 5 runs thus:

If the third party enters appearance, the Defendant on whose behalf notice was issued may apply to the Court for directions; and the Court-may, if satisfied that there is a question to be tried as to the liability of the third party to make the contribution or pay indemnity claimed, in whole or in part, order the question of such liability, as between the third party and the Defendant giving the notice, to be tried in such manner, at or after the trial of the suit, as the Court may direct; and, if not so satisfied, may pass such decree or order as the nature of the case may require.'''' The third party notice is issued tinder Rule 1 which provides that:

Where a Defendant claims to be entitled to contribution from or indemnity against any person not already a party to the suit (hereinafter called a third party), he may by leave of the Court, issue a notice (hereinafter called a third parley notice) to that effect, sealed with the seal of the Court. The notice shall state the nature and grounds of the claim. Such notice shall be filed into Court with a copy of the plaint and shall be served on the third party according to the rules relating to the service of summons.'''' From a combined reading of Order Rules1 and 5, it is manifest that where a Defendant claims to be entitled to contribution from or indemnity against a person, not already a party to the suit, he may, by leave of the Court, issue a notice to that effect. The, notice shall state the nature and grounds of the claim. On receipt of the notice, if the third party enters appearance, the Defendant, on whose behalf the notice was issued, may apply to the Court for directions.

.... On such application being made by the Defendant for directions, the Court must make an enquiry as to whether there is a question to be tried as to the liability of the third party to make the contribution or to pay the indemnity claimed. If the Court is satisfied it may pass such decree or order as the case may require.

As has been pointed out by Venkataramanarab, J. in L. Venkatakrishna Naidu, Receiver Vs. R. Narayanaswami Aiyar and five Ors. and T.S. Rajarama Sastri, .

The object of the third party procedure is to prevent the same question being tried twice over, where there is any substantial question common as between the Plaintiff and the Defendant in the action and as between the Defendant and a third person. All the questions between the Defendant and the third party need not be identical with the questions to be. tried between the Plaintiff and the Defendant.

It is enough if there is a common question to be tried.

At the same time it is" the duty of the court to see that by the addition of the third party the plain-till is not embarrassed in the trial of question in which he would have no concern. If the adjudication of the question between the Defendant and the third party would embarrass the Plaintiff in his trial, the court generally exercises its discretion by ordering the trial of those issues subsequent to the trial of the action.

The contention of the learned Counsel for the Petitioners is that once the Defendant obtains the leave of the court to issue notice to a third party, the court has no option but to add the third party. In other words, the court is precluded from holding that it is not necessary to do so. On a plain reading "of the material provisions, I consider that that could not have been the intendment of the rule. If the court is satisfied that there is no question to be tried, as to the liability of the third party to make the contribution or pay the indemnity claimed, it should be at liberty to hold that there is no such question and to dismiss the application for! directions.

In this connection it is necessary to remember that under Order 1, Rule 10(2), CPC power is given to the court to order that name of any party improperly joined, whether as Plaintiff or Defendant, be struck out. The impropriety referred to in this rule is in introducing a party who has no connection with the relief claimed in the plaint. If Order 8A, Rules. I and 5 have to be read in the manner suggested for the Petitioner, they (7) This Civil Revision Petition, therefore, fails and is dismissed with costs.