AI Structured Summary
Not yet generated for this judgment
Judgment
This petition has been filed by the original defendant 2 seeking to challenge the Judgment and Order dt. 2nd May 1981 of the Court of the Joint Civil Judge, S. D. Nasik passed below Exh. 57 rejecting the claim of the defendant No. 2 to add the respondent 6 the third party as a party to the suit under the provisions of Order 8, Rule 23 of the Civil P.C.
Respondents 1 to 3, the original plaintiffs filed against the respondent 4 being defendant 1, the petitioner being defendant 2 and respondent 5 being defendant 3, the aforesaid suit for recovery, of a sum of Rs. 16,30,925.41 paise. It was their case that they were carrying on their business inter alia of buying and selling tobacco. The third party respondents BhikusaYamasa Kshatriya Private Limited had from time to time bought tobacco and tobacco leaves from the plaintiffs, On an account being taken it was found that an amount of Rs. 17,44,619/- was due and payable by the said third party Company to the plaintiffs. The defendants 1 to 3 were at all material times the Directors of the said third party Company and the defendant 3 continued to be its Director. The defendants 1 to 3 had stood as guarantors for the payment found due from the third party Company. The suit was filed against the defendants 1 to 3 for recovery of the amounts due from the said third party Company.
On the 10th Mar. 1980 the defendant 2 filed the present application Exh. 57 for impleading the aforesaid third party company as a party defendant to the said suit claiming pro rata indemnity from the said third party Company in the event of a decree being passed against him and he paying over the decretal amount to the plaintiffs. The said application as filed under O, 8, Rule 23 of the Civil P.C.
The aforesaid application was resisted by the plaintiffs challenging the maintainability of the application under Order 8, Rule 23 as also on the ground that the third party procedure contemplated under Rule 23 to Rule 30 of Order 8 had stood deleted by virtue of the amended provisions of the Civil P.C.
The learned Judge of the Trial Court held that the Civil P.C, 1976 had repealed the provisions of third party procedure provided under Rule 23 to Rule 30 of Order 8 of the Civil P.C. He also held that the written statement of the defendant 2 as it stood had not made out claim as against the third party Company and the defendant 2 was not entitled as of right without the leave of the Court to amend his written statement so as to raise his claim as against the third party Company. The defendant 2 not having made out a case in his written statement that he is entitled to the contribution of indemnity from the third party, his application for adding the third party Company was premature and his application would be maintainable only after written statement making out the said case was got amended. Pursuant to the aforesaid findings, the said application was rejected with costs.
Being aggrieved by the aforesaid Judgment and Order,'' the defendant has preferred the present petition. During the pendency of this petition, the plaintiffs who had initially resisted the application for impleading the third party Company by his Civil Application No. 5611 of 1986 consented to the third party Company being impleaded as a co-defendant to the suit. However, in the present proceedings the prayer of impleading the third party was resisted by the said third party Company before me.
Shri Abhyankar the learned Advocate appearing on behalf of the petitioner, defendant 2, submitted that this High Court in exercise of powers u/s 122 of the Civil P.C. had framed rules which included the Rules 23 to 30 of Order 8 dealing with third party procedure. The said provisions were in existence all along and in any event on the date of the passing of the impugned Order by the Trial Court. The learned Judge of the Trial Court was, therefore, not right in holding that the said provisions stood deleted by the Civil P.C., 1976. He further submitted that for taking resort to third party procedure, it was not necessary that the written statement as it stood should make out a claim as against the third party sought to be impleaded as that claim could arise only after a decree is passed against the original defendant and after the defendant had made payments in satisfaction of the said decree. The said claim could legitimately be made by amending the written statement after the third party is joined which amendment, in so far as the same lays a claim against the third party for contribution of indemnity would be treated as a claim and the third party would be entitled to file its written statement raising such contentions as are permissible in law.
In my judgment the aforesaid contentions of Shri Abhyankar are justified. Shri Divekar the learned Advocate appearing on behalf of the third party Company, however, drew my attention to Section 97 of the repealing Act of the Civil P.C. 1976. Sub-section (1) of Section 97 reads as under :--
"Any amendment made or any provisions inserted in the principal Act by a State Legislature or a High Court before the commencement of this Act shall, except in so far as amended by this Act, stand repealed."
Placing reliance upon the aforesaid repealing provisions, Shri. Divekar submitted that the provisions of third party procedure as contained in Rules 23 to 30 of Order 8 had not been incorporated in 1976 Civil P.C. The said provisions were, therefore, inconsistent with the main Code and thereby stood repealed in view of the aforesaid repealing provision.
Section 122 of the Civil P.C. which gives power to the High Court to make rules in so far as is relevant reads as under: --
"High Courts may from time to time make rules regulating their own procedure and the procedure of the Civil Courts subject to their superintendence and make such rules annul, after or add (emphasis provided) to all or any of the rules in the First Schedule."
The aforesaid power as is apparent is wide enough to frame rules which may annul, alter or add to the rules framed in the First Schedule, to the Code. The High Court in exercise of the said power framed rules which included Rules 11 to 30 of Order 8 to the said Code and this was done by High Court Notification No. P6234/60, dt/- 30th Sept. 1966 vide Clause 29. The question that was raised before me was whether the said rules stood repealed by virtue of the repealing provision of Section 97 reproduced hereinabove and in my judgment the same were not repealed by the said Section 97. In my judgment the said provision can be said to be repealed only when the said provision inserted by the High Court before the commencement of the said Act was inconsistent with the provisions of the principal Act. If the aforesaid construction is not given to the aforesaid repealing provision, it would mean that all amendments and provisions inserted in the principal Act by the High Court which did not find a place in the amended Act would stand repealed. If that was the intent of the said repealing provision, nothing could have been simpler than to provide for repealing of all amendments and provisions inserted in the principal Act by the High Court. In view of the construction given by me to the said repealing Section 97. I find that the third party procedure inserted by the High Court by Rules 23 to 30 Order 8 of the Code are not inconsistent but are in addition to the provisions contained in Schedule 1 to the 1976 Code and the same shall continue to remain in force and applicable to all the proceedings in all Courts subject to the superintendence of this Court.
Shri Divekar further submitted that under the new Code the power to frame rules is vested in the Chief Justice whereas under the old Code the power was that of the High Court and after receipt of the report from the Committee appointed by the High Court u/s 123 of the Code. Shri Divekar submitted that so long as fresh rules as contemplated under the 1976 Code were not framed by the High court as aforesaid no resort could be had to the rules framed under the old Code. In view of my finding that the rules framed by the High Court under the old Code continued to apply and the same did not stand repealed, the aforesaid contention of Shri Divekar is without substance. The said new provisions regarding framing of rules by the High Court can only apply to the fresh rules being framed after the coming into force of the 1976 Code.
In this view of the matter, the learned Judge of the trial Court had clearly erred in holding that the application of the defendant 2 for impleading the third party Company was not maintainable.
In the result, this petition must be allowed. The impugned Judgment and Order of the trial Court is set aside and the application of the defendant 2, Exh. 57 for impleading the third party Company as a party to the Suit under the provisions of Order 8 Rule 23 is hereby allowed. On the third party being impleaded, the defendant 2 shall have liberty to amend his written statement and the third party Company would be entitled to file its written statement for raising such contentions as are permissible in law. In view of the fact that the present suit is pending for about ten years, the said suit is expedited and the learned Judge of the trial Court is directed to hear and dispose of the same expeditiously as far as possible within six months. The parties including the third party to appear before the trial Judge on 9th Feb. 1987 when the learned Judge of the trial Court will take up the suit on his Board and pass necessary directions for the progress of the expeditious hearing of this suit. Rule absolute. The respondents shall pay to the petitioner the costs of this petition as also of the application in the trial court in view of the judgment in the present writ petition, no separate order is necessary in the civil application.