Order passed held untenable.

ORDER :- The defendant in O.S. No.2026 of 1978 on the file of the City Civil Court, Madras is the petitioner herein. The plaintiff in the suit wanted to recover back a sum of Rs. 20,000, being the principal and interest of the amount advanced to the defendant by means of a cheque. The defendant is Messrs. Victory Laminations represented by its partner T. Jayaraman. It raised various contentions in the written statement. The said suit is pending and the petitioner herein filed I.A. No.15485 of 1980 for issue of notice under Order 8-A of the Civil Procedure Code to one T. Shanmugham and S. Jayalakshmi. In the affidavit filed in support of this petition, the petitioner herein has alleged that these parties were partners of Victory Laminations and even before they left the partnership, this cheque was issued by the plaintiff in the suit. It is further contended by the petitioner that these two persons who are sought to be impleaded as respondents are liable to indemnify the petitioner herein and the other partners of the firm. Hence it is prayed that notice under Order 8-A of the Civil Procedure Code, may be issued to the proposed respondents 2 and 3. The trial court, without properly appreciating the usual procedure dismissed the application. No doubt, the trial Court has stated that the application is belated. It is against this order, the present revision petition has been filed.

2. Mr. Syamalam, the learned counsel appearing for the petitioner, after pointing out the averments made in the affidavit filed in support of the application filed under Order 8-A of the Civil Procedure Code, submitted that in order to claim indemnity, it is necessary that the proposed respondents must be made parties to the suit. This argument is opposed by Mr. Jose, the learned counsel appearing for the plaintiff in the suit on the ground that the application is belated, that it is filed in order to protract the proceedings and that since the defendant has failed to implead these respondents under Order 1, Rule 13, C.P. Code, he must be held to have waived his right. The learned counsel appearing for the proposed respondents 2 and 3 submitted that as per the deed of dissolution, they are not liable to pay and they are unnecessary parties to the suit.

3. I have carefully gone through the facts of the present case. It is clear that under Order 8-A of the Civil Procedure Code, a defendant in the suit can get the leave of the court to issue a notice to third parties. The order reads :-

"8-A(1). Where a defendant claims to be entitled to contribution from or indemnify against any person not already a party to the suit (hereinafter called a third party) he may, by leave of the court, issue a notice (hereinafter called a third party notice) to that effect, sealed with the seal of the court. The notice shall state the nature and grounds of the claim. Such notice shall be filed into court with a copy of the plaint and shall be served on the third party according to the rules relating to the service of summons........."

It has been clearly averred by the petitioner herein that he wants indemnification from the two proposed respondents since they were partners at the time when the cheque was issued by the plaintiffs to the partnership concern. No doubt O.1, R.13 of the Civil Procedure Code speaks about objections as to non-joinder or mis-joinder of parties. This is not a case wherein the defendant wants to raise a contention either of non-joinder or mis-joinder of parties in the suit, but this is a case wherein the defendant wants to invoke the third party procedure available to him under the Code. Hence I do not think that there is any relevancy in quoting O.1, R.13 of the Code to support the contention of the plaintiff in the suit. No doubt there is a delay in this case. Nevertheless, the right of the petitioner to invoke the procedure laid down under O.8-A can be safeguarded provided a prima facie case is made out for the issue of such notice. As the fa