AI Structured Summary
Not yet generated for this judgment
Judgment
Kumaraswami Sastri, J.—The suit out of which this petition arises was for contribution in respect of costs awarded by the decree in O.S.
No. 41 of .1909 paid by the plaintiff. The sum paid by plaintiff was according to the decree in O.S. No. 41 of 1909 payable by plaintiff and
defendants jointly. The suit was to recover possession of property which was trespassed upon by the defendants and a decree was passed in
favour of the plaintiff with costs. If the defendants were joint tort-feasors there would be prima facie no liability for contribution. The Subordinate
Judge framed a preliminary issue as to whether the plaintiff was in law entitled to recover any contribution for costs from the defendants. The
judgment in O.S. No. 41 of 1909 was filed as Exhibit I without any objection by the plaintiff. The Subordinate Judge states and it is not disputed
before me that neither party let in any evidence though time was given to them to do so. Each party filed a document (plaintiff filing Ex. A and
defendant Ex. I). The Subordinate Judge referred to the findings in the judgment. Ex. I which show that the defendant in that suit not only
trespassed but fabricated false documents to defeat the claim of the plaintiff in that suit and held that no suit for contribution would lie under the
circumstances.
Objection is taken that the judgment in O.S. No. 41 of 1909 is not admissible in evidence and reliance has been placed on Gobind Chunder
Nundy v. Sri Gobind Choudhary ILR (1896) Cal. 330 which follows the decision in Surender Nath Pal Choudhury v. Brojo Nath Pal Choudhury
ILR (1886) Cal 352
I am of opinion that the judgment in a suit which is the basis of the suit for contribution is admissible in evidence in a suit for contribution. As
pointed but in Siva Panda v. Jujusti Panda ILR (1901) M. 599 it is not open to the parties to impugn the propriety of the judgment though it will be
open to the party from whom contribution is sought to show that "" as between the joint debtors the plaintiff is solely liable or that he is not equally
liable with the plaintiff or that both being joint tort-feasors in a sense in which on public grounds the right of contribution is negatived, the suit is not
maintainable."" If it is not open to the parties to impugn the judgment I do not see how it can be said that the judgment in a suit to which all the
parties to the suit for contribution were parties is not admissible in evidence.
The decision in Surendra Nath Pal Choudhry v. Brojo Nath Pal Choudhury ILR (1886) Cal. 352 as pointed out in Tepu Khan v. Rajani Mohan
Dass ILR (1898) Cal. 522 has been considerably shaken by the decision of the Privy Council in Ram Ranjan Chuchkcerbutty v. Ram Narain
Singh ILR (1894) Cal. 553 : 5 M.L.J. 7 and Bitto Kunwar v. Kesho Pershad (1896) L.R. 24 IndAp 10. The preponderance of authority is in
favour of the view that in cases like the present the judgment to which the plaintiff and defendants were parties would be admissible even though it
may not be a judgment in rem or operate as res judicata. I need only refer to Tepukhan v. Rajani Mohan Das ILR (1898) Cal. 522 and Lakshman
v. Amrit ILR (1900) Bom. 591.
As neither party adduced any evidence and as the judgment on the previous suit is admissible in evidence, I think the Subordinate Judge was
right in basing his decision on the findings in the previous judgment which show that the present plaintiff was a joint tort-feasor. In a suit for
contributition the plaintiff must show some equity in his favour. There is none when two persons join together and trespass on the property of a
third person.
The petition fails and is dismissed with costs