JUDGMENT - Chainani, C.J.

(1) This is appeal by the original defendants against the order made by the Mr. Justice K.K. Desai directing the defendants to pay court -fee on the third party note taken out by them against the second respondent. On 5th September 1959 the second respondents entreated into a contract with the first respondents who are the original plaintiffs, for the supply of manages are to the plaintiffs. The contract provided that the material shall be re - routed through the state Trading corporation of the India ltd. I.e. through the defendants. On these day the appellants defendants entered into a contract with the first respondents for the supply of managers are to the first respondents. The appellants also entered into a contract with the first respondents for the supply of manganese are of the in first respondent. The appellants also entered into a contract with the second respondents, who agreed to supply the manages are to the appellants. The arrangements arrived to the therefore was that the second respondents were to supply manganese are to the appellants who had to consign it to the first respondents. According to the first respondents the goods supplied to them were not of the proper quality and there was also short deliveries. On 23rd September 1963 the first respondents therefore filed a suit against the appellants in which they claimed about Rs. 7, 75, 000 from the appellants. On 27th November 1963 the appellants obtained leave from the second respondents and to serve it upon them. This leaves was applied for and grated under Rules 151 of the High court Original side Rules. By this notice the second respondents were informed the same relieves, which had been claimed from the appellants by the first respondents. The notice also stated.

"The defendants say that the following question or issues relate to or are connected with the original subject matter of the above suit and are original subject the matter of the above arising the between the plaintiff and the defendants same should property be determined on only as between the plaintiff and the defendants but as between the plaintiff and defendants but as between the plaintiff defendants and yourselves.

(i) Whether the said consignment of the Manganese are shipped is per S.S. "Older" in July 1960 was deficient in quantity and quality as alleged by the plaintiffs in the plaint and you thereby committed a breach of the alleged contract No, 90/1959.

(ii) whether the your committed fraud, miss- respondent of deceit as stated by the plaintiff in the suit.

(iii) Whether the damages for the aforesaid breach of contract mentioned in [I] hereof come to the said sum of Rs. 2,49, 455. 49 NP. As per particulars mentioned in Ex. G to the plaint and the said further sum of Rs. 16, 609 with interest on the aforesaid sums at the rate of 6 per annum from the date of the suit till judgment.

(iv) Whether you failed to ship the remaining quantity of the manganese are by the end of November 1960 and thereby committed a breach of the said alleged contract No. 90/1959.

(v) Whether under the circumstances stated in sub = paragraph [iv] above you are liable to return to the defendants the said sum of the Rs. 5,77,128.68 nP being the price paid in the advances on behalf of the defendants to your under the contract No. 99/1959 with interest thereon at 6 per cent per annum from the 6th day may 1960 till payment.

(vi) Whether you are liable to the pay to the defendants the cost that the defendants may have to pay to the plaintiff in suit and the costs incurred by the defendants in defending the plaintiff claims in the suit as also of the Third party proceedings."

The notice further stated that if the second respondents wished to disputed the plaintiff claim in the suit against the defendants or their liability to the defendants or it they wished to the be hears on the said question or issued or on the defendants liability to the plaintiff or the liability of the second respondents to the

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