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Judgment
Ramaswami, J.—This is a Revision Petition sought to be preferred against the order in I.A. No. 667 of 1954 in O.S. No. 1100 of 1953 on
the file of the District Munsif of Erode. The facts are: The plaintiff Othi Pannadi on the foot that the 1st defendant''s car dashed against him and
caused him bodily pain and mental worry, seeks to recover Rs. 1,000 by way of damages. The 1st defendant on the foot that his car had been
insured with the Vanguard Insurance Company Ltd., Madras, filed an application under O. 1, R. 10 C.P.C., to implead the Insurance Company as
a supplemental defendant as a necessary party to the suit and liable to indemnify him in case of damages to third parties by accidents. The
company opposed this application on the ground that by reason of defaults and breaches of the conditions of the policy they are not liable to
indemnify the 1st defendant. The plaintiff did not want the company to be impleaded as a supplemental defendant. The learned District Munsif
holding that no case had been made out for impleading the company under O. 1, R. 10 C.P.C., dismissed the petition and hence this Revision
Petition.
Order 1, R. 10, C.P.C., corresponds to the second sentence of O. 16, R. 11 of the English Rules of Supreme Court: See The Annual Practice,
1954. The object of the rule is to bring before the Court at the same time all the persons who are parties to disputes relating to one subject matter
so that the disputes may all be determined at the same time without delay, inconvenience and expense of separate actions and trials, and the
principle underlying the rule is, that the Court putt itself in the position of being able to effectually and completely adjudicate upon, and settle all the
questions involved in the suit. The sub-rule gives a wide discretion to the Court to meet every case of defect of parties but is subject to two
limitations: (1) The Court has no power to join a person as a party if he could not have been originally impleaded under O. 1, R. 1 or R. 3, C.P.C.,
(2) The presence of the person added must be necessary to effectually and completely adjudicate upon and settle all points involved in the suit.
Thus, O. 1, R. 10, provides for the addition of only two classes of persons viz., necessary parties, that is to say, persons who ought to have
been joined as parties; and proper parties, that is to say, persons without whose presence the questions in the suit cannot be completely and
effectually adjudicated upon. Where a person is neither a necessary nor a proper party, the Court has no jurisdiction to add him as a party under
O. 1, R. 10, C.P.C.
Therefore, let us see whether the insurer is a necessary or proper party in the circumstances of this case. The persons who ought to be joined as
parties are called necessary parties. Their presence is necessary to the institution of the suit that is to say, persons in whose absence no effective
decree at all can be passed. But a person who is only indirectly or remotely interested is not a necessary party. Thus an insurer is not a necessary
party to the suit where the cause of action on the pleadings is only against the person who is alleged to have interfered with the plaintiff and caused
him damages. But a person is however a proper party if his presence before the Court is necessary to enable it to effectually and completely
adjudicate upon and settle all the questions involved in the suit. In other words, the expression ""proper party"" means a party who may be interested
in the result of the suit and who may have a right to seek the assistance of the Court in coming to a decision on the point in issue. It is not necessary
that any relief should be asked against him, the object of adding him is only to avoid needless multiplicity of suits and to protect his interest or the
interests of a party already on record. It is not also necessary to justify the addition of a defendant that he should be interested in all the reliefs
claimed in the suit or in all the questions arising between the plaintiff and the other defendants. Though under O. 2, R. 3, defendants cannot be
added unless the cause of action is the same as against all of them they can be added under this rule although the causes of action are different.
Therefore looked at from this point of view an insurer is both interested in the result of the suit and he has a right to seek the assistance of the Court
regarding the establishment and quantification of the assured''s liability to the plaintiff and on the foot of which alone his liability to the third party as
well as the assured arises. In exercising the powers under this rule Courts have got to see that they do not load the record with parties who are
shown, to have no interest in the suit and that the trial of the suit is not embarrassed by the simultaneous investigation of totally unconnected
controversies. The discretion should be exercised in a reasonable manner so as not to cause inconvenience or embarrassment or injustice to the
plaintiff. Although the powers of the Court under O. 1, R. 10, are wide enough to add parties to the suit or proceedings the Court would not
ordinarily without the concurrence of the plaintiff make a third party as a proper party as the plaintiff is the dominus litis who should clearly be
allowed to control his own litigation.
Bearing these principles in mind, if we examine the order of the learned District Munsif, it is a correct order because the insurer is not a
necessary party and as for bringing him on record as a proper party the learned District Munsif has found that in the circumstances of this case the
addition of this party would cause inconvenience or embarrassment by the simultaneous investigation of totally unconnected controversies between
the assured and the insurer.
In fact competent opinion is to the effect that these are considerations which might well be held to prevent any such joinder of assured and his
company as defendants. Shawcross on the Law of Motor Insurance, 2nd edition (1949), Butterworth & Co., page 151 writes:
Only the chief of these (considerations) need be mentioned. It is that although there is the common question of the liability of the assured to the
third party, the other questions between the third party and the insurance company would be of an entirely different nature. They would be
complicated questions of insurance law and questions of fact having no relation whatever to the issues between the third party and the assured. In
these circumstances it is suggested that the trial of the two actions together would be both embarrassing and inconvenient. In the result, therefore, it
must be concluded that a third party, although he might in certain cases be entitled in law to take immediate action against the insurance company,
would not in practice and as a rule be able to do so unless he had first established and quantified the assured''s liability to him, This he may do by
obtaining judgment against the assured in respect of such liability or by a valid agreement made with him or his agent.
Therefore, finding that the order of the lower Court cannot be assailed in Revision on the foot of its being an application under O. 1, R. 10,
C.P.C., it was the Endeavour of the learned Advocate in this Court to argue that the learned District Munsif should have treated it as an application
under O. VIII-A, C.P.C., which has been added in Madras: See Fort St. George Gazette, Part II, page 163 dated 21st August 1951.
The third party procedure comprised in O. VIII-A, is a simplification of the third party procedure prevailing on the Original Side of the Madras
High Court comprised in O. V-A of the Rules of the High Court of Judicature in its original jurisdiction. This O. V-A is itself an adaptation in a
simplified form of O. XV1-A of the Rules of the Supreme Court which are founded upon the Judicature Act of 1925, S. 39. The Rules of the
Supreme Court comprised in O. XVI-A, consist of 13 rules viz., R. 1 relating to third party notice; R. 2 relating to form and issue of notice; R. 3
relating to the issue of notice; R. 4 relating to the appearance; Rr. 5 and 6 relating to the default by third party; R. 7 relating to third party
directions; R. 8 relating to leave to defend; R. 9 relating to the procedure at trial; R. 10 relating to costs; R. 11 relating to fourth and subsequent
parties; R. 12 relating to co defendants and R. 13 relating to counter-claim. In O. V-A of the Original Side Rules, Rr. I and 2 correspond to R. 1
of R.S.C., R. 13 to R. 5, R. 4 to R. 6, R. 5 to R. 7. R. 6 to R. 8 R. 7 to R. 10 R. 8 to R. 12, R. 9 to R. 11. In O. VII-A Rr. 1 and 3 to 9
correspond to Rr. 1 and 3 to 9 of V-A of O.S. Rules [For rules of the Supreme Court-See: The Annual Practice 1954) (Seventy first Annual
issue) edited by Burnand, Diamond and Burnett-Hall published by Sweet and Maxwell, Stevens and Butterworths and Third party procedure in
County Courts Vol. 8 pages 243-244 and in High Court Vol.26 pages 78 to 81 of Halsbury''s Laws of England (Hailsham edition) and Rules of
the High Court in its original Jurisdiction (1940) M.L.J. publication for O. V-A and S. Krishnamurti''s C.P.C., Seventh edition (1953) for O. VIII-
A].
The object of the third party procedure is twofold: First to prevent the same question from being tried twice with possibly different results;
BenecKe v. Frost (1876) 1 Q.B. 422, Re Salmon (1889) 42 Ch.D. 360, and secondly, to prevent multiplicity of action s and to enable the Court
to settle disputes between all the parties in one action: Baxter v. France (1895) 1 Q.B. 593, Barclay''s Bank v. Tom (1923) I.K.B. 221, 228,225.,
Venkatakrishna v. Narayanaswami (1988) 2 M.L.J. 886 = 11 L.W. 910. The third person is to be cited to take part in the original litigation and so
to be bound by the decision on that question once for all: Venkatahrishna v. Narayanaswami (1988) 2 M.L.J. 886 = 11 L.W. 910.
The third party procedure is applicable only to cases of contribution or indemnity. In effect a claim to contribution is a claim to a partial
indemnity. Contribution is bottomed and fixed on general principles of justice and does not spring from contract, though contract may qualify it:
Dering v. Winchelsea 1 Cox. 918. A right to contribution may be created by statute. A right to indemnify may arise (i) from express contract; (ii)
from some statute; or (iii) implied from some principle of law. A right to indemnity exists where there is an obligation either a law or in equity upon
one party to indemnify the other: Eastern Shipping Co., v. Quah Beng Kee (1924) A.C. 177, Burmingham and District Land Company v. London
and N. W. Ry. (1886) 34 Ch. D. 261. An insurer can be added as a third party in an action for personal injury in a road accident as the defendant
is entitled to indemnity from that party. For a discussion of the scope of the third party procedure on the Original Side, See L. Venkatakrishna
Naidu, Receiver Vs. R. Narayanaswami Aiyar and five Ors. and T.S. Rajarama Sastri, .
The person who may apply under O. VIII-A, C.P.C., as in the case of O. V-A of the Original Side Rules is only the defendant, whereas under
O. XVI-A of the Supreme Court Rules the plaintiff who is a defendant to a counter claim may apply.
There is no restriction in regard to the point of time when a defendant may ask for the issue of a third party notice under O. VIII-A, Civil
Procedure Code. But naturally the application should be made at a stage of the proceedings when it is possible there may still be a trial of action
between the plaintiff and the defendant [Rich v. Darret 28 S.J. 518, Caister v. Chapman (1864) W.N. 81, Flower v. Todd (1884) W.N. 47,
Gloucestershire Banking Co. v. Phillips 12 Q.B.D. 588.]
The practice under O. XVI-A of the Supreme Court Rules is to prefer an application for leave ex Parte to the Master an affidavit which may
be made by the defendant''s solicitor and must stage the nature of the claim in the action: the state of the proceedings, the facts out of which the
claims against the third party arises; his name and address. In the case of the Original Side, application for leave is also made expert to the Judge
on affidavit stating the nature and grounds of the claim and this is also the procedure to be followed under order VIII-A , Civil Procedure Code.
The Court has even at that stage a discretion not to allow notice to be served where the result will be to embarrass or delay the plaintiff; Swansea
Shipping Co. Duncan 1 Q.B.D. 644, Bower v. Hartlay (1876) 1 Q.B.D. 652. Carshore v. N.E. Railway 29 Ch. D. 344 or where the questions at
issue cannot be completely disposed of in the action. Barter v. France (1895) 1 Q.B. 591. But these matters are generally considered on the
application for directions and not on the application for leave to issue; Furness v. Pickering (1908) 2Ch. D. 224. Leave is granted to issue notice
where the applicant makes out a prima facie case that he is entitled to contribution or indemnity. It is presumed that if a prima facie case is made
out which would bring the matter within any part of O. VIII-A, this practice will apply and the Court will not in granting leave consider the merits of
the claim but leave these matters and objections which can be raised by the plaintiff or proposed third party to be dealt with to the stage when
directions are asked for: Edison & Co. v. Holland 33 Ch. D. 497, Carshore v. N.E. Railway (supra), Baxter v. France (supra); Furness v.
Pickering (supra).
In regard to service, the only service required is effective service, whether it is personal or postal or substituted.
The effect of default is the same under all the three third party procedures.
It is at the stage of asking for directions, viz., under R. 5 of O. VIII-A, Civil Procedure Code, that the Court exercises its discretion. Then the
defendant has to show a prima facie case within R. 1 of this order that he is entitled to bring the third party on record and though the production of
the affidavit on which leave was obtained to issue the third party notice would in ordinary circumstances be sufficient, the defendant has to bespeak
it. It will be open to the third party to show either by adduction of evidence or by arguments at the Bar the special circumstances why directions
should not be given that is the application should be dismissed. The plaintiff at this stage also can prefer his objections. Carshore v. N.E. Ry. Co.
(supra); Grevile v. Hayes (1894) 2 I.R. 20, Fumes v. Pickering (supra). The Court on a consideration of all the matters has to decide whether the
third party application should be dismissed or proceeded with, care being taken to see that the plaintiff is not unduly embarrassed or put to
additional expense or difficulty, for he has nothing to do with the questions which have arisen between the defendants. The Courts will also dismiss
the application if it is found that the claim is outside contribution or indemnity, or if the case is one of too great complication or difficulty to be
properly tried in the original action. If the Court finds that these matters cannot be properly tried together with the original action, then it is open to
the Court to order that the questions arising between the third party and the assured be tried in such manner at or after the trial of the suit as the
Court may direct: Pontifex v. Foord 12 Q.B.D. 152, Bell v. Von Dadelssen (1883) W.N. 208 Baxter v. France (1985) 1 Q.B. 591, Schnerder v.
Batt 8 Q.B.D. 701. C.A. The Bianca 8 P.D. 91. A refusal to order directions under R. 5 of O. VIII A, Civil Procedure Code, puts an end to the
third party proceedings and having regard to the terms of the rule an order should be drawn up.
This third party procedure cannot be invoked by this Revision Petitioner in support of his petition because his application was not based upon
it, the order of the Court was not based upon it, the grounds of the Revision Petition are not based upon it. If the Revision Petitioner is to obtain
the benefit of the third party procedure of which he and his Advocate seemed to have been ignorant in the lower Court, he must resort to the
procedure prescribed under O. VIII A, Civil Procedure Code, and not ask me to convert his application under O. 1, R. 10 into an application
under O. VIII-A. This Revision Petition is dismissed.