Ramaswami Pillai vs Angammal and Others

(1) This revision arises from the order of the District Munsif, Palni, in I. A. No. 706 of 1959 (O. S. No. 405 of 1957), refusing to issue a third

party notice to Mariappa Pillai and Thangaraju. The petition was for the issue of third party notice under Order VIII-A of the CPC by the

defendants in the suit instituted by Angammal, the first respondent, for recovery of a sum of Rs. 1285.40 nPs., from the petitioner herein as due to

her on dealings.

The petitioners (defendant''s) pleaded that they had paid certain moneys to the husband of Angammal, one Mariappa Pillai, and claimed a pro

tanto discharge of the suit claim. They followed up their written statement by filing the application under Order VIII-A C.P.C., for impleading

Mariappa Pillai and his agent, Thangaraju as third party defendants, claiming that in case they were unable to prove that the payment made to those

persons were binding on Angammal they would be entitled to an indemnity from those persons. The learned District Munsif rejected the

application.

(2) Mr. Ramamurthi, learned counsel for the petitioner, contends that, in substance, the claim of the defendants against Mariappa Pillai and

Thangaraju was one on an indemnity and that, therefore, the third party notice should issue, I am unable to agree. The case of the defendants was

that Mariappa Pillai and Thangaraju had authority from Angammal to receive the monies and did receive such monies from the petitioners. If they

make out their case, payments made to these persons will be binding on Angammal. If, on the other hand, they fail to make out that case, but still

are able to prove that they, in fact made payments to Mariappa Pillai and Thangaraju it would only mean that those two persons got the monies

from the petitioners by false pretences namely that they had authority of Angammal to get the moneys while in fact, they had no such authority.

Such a claim would be in the nature of damages for tort. I cannot see how it can be said that the claim is one by way of indemnity.

(3) Counsel, however, relies upon a passage in Bowstead on Agency, 12th Edn page 273 and on a decision of the Allahabad High Court reported

in Kedar Nath Vs. Har Govind, . In Bowstead on Agency at page 273 it as stated that

where the authority of the agent is disputed by a person on whose behalf the contract is made, the person who made the contract may be joined

with him as a co-defendant and relief claimed against him alternatively.

(4) In Kedar Nath Vs. Har Govind, , money was left by a person with another for payment to a third party. The money was not paid as a result of

which the person who gave the money suffered damage. It was held that the person to whom the money was paid was liable in damages to him

and that Art. 83 of the Limitation Act would apply to the claim. The position as stated above is entirely different from what we are having here. The

statement of law relates to a case where the principal stated sued the agent who played false to him. The case before me if accepted is one where

a person paid money to another believing in his representation that he had authority to bind another. That will be a plain case of procuring money

by false pretences. The claim is not therefore one on any indemnity express or implied and the provisions of Order VIII-A of the C.P.C., will not

apply.

(5) The civil revision petition fails and is dismissed with costs.

(6) Revision dismissed.