M/s. Tablets India Ltd. vs Canara Bank and others

The petitioner who is the third defendant in O.S.No.1041 of 1987 made an application under Order 8-A, Rule 8 of the court to issue notice to

the first defendant in the suit under the said provision and Order 8-A to decide the right to be indemnified.

According to the petitioner, the suit is one which involves an issue regarding the petitioners liability for the suit claim and the right to be

indemnified by the defendants 1 and 2 and that has to be tried and necessary relief has to be given in favour of the applicant to avoid multiplicity of

proceedings. It was resisted by the plaintiff. The lower court rejected the application only on the ground that such an application cannot be

maintained against defendants 1 and 2 as they are already parties to the suit. Such an approach is hot sustainable.

Rule 1 in order 8-A the CPC is an exception to the well-known principle that the plaintiff is the dominant litus in a suit, it is to be observed that

once a party is recognised as a third party, directions for contribution and indemnity against him follow as a matter of course, if such a claim is

possible in the eye of law.

Raghava Rao, J in V.M. Chockalingam Chettiar Vs. T.A.S.V. Alagammai Achi and Another, while deciding with the scope of the said provision

held that third party procedure cannot be availed of as against a person already on record. If this were not so co-defendants who can avail

themselves of the third party procedure will be great by embarrassed and indeed prejudiced. Order 8-A, Rule 8 warrants such a procedure as

between co-defendants. This judgment has been followed by Ramprasad Rao, J. reported in The Concord of India Insurance Company, Ltd. Vs.

Kaveri Ammal and Another, , the learned Judge has observed that I am not therefore inclined to accept the argument of Mr. Prabhu, learned

counsel for the petitioner, that the application to implead his client as a third party is not maintainable since the second defendant is already a party

on record.

In view of the abovesaid cases, the order of the Lower Court cannot be sustained and it is set aside. Consequently, I.A.No.5779 of 1988 is

ordered and the C.R.P. is allowed. Consequently, C.M.P.No.15727 of 1989 is closed. No costs.