Raising of question of jurisdiction by the third party.

This revision raises the question of the propriety of the dismissal of an application made under Order 8-A, Civil Procedure Code. The petitioner was the third defendant in a suit, O.S. No. 445 of 1952 on the file of the IV Assistant Judge, City Civil Court. The plaintiff was constituted the agent by the Mysore Iron and Steel Works, Bhadravati, (first defendant) for the purpose of collecting 250 tons of scrap iron at Visakapatnam for the Scindia Steam Navigation Company, who originally figured as the second defendant in the suit. The plaintiff was carrying on business at Madras. He in his turn, made the third defendant, who was carrying on business at Visakapatnam, his agent for taking delivery of the scrap iron from the second defendant and forwarding it to the Mysore Iron and Steel Works at Bhadravati. The third defendant took delivery from the second defendant and passed a receipt for full delivery of the 250 tons. It was claimed by the plaintiff that the delivery was made not on weighment basis but on measurement basis. At Bhadravati a shortage of about 68 tons was found and the plaintiff had to refund a sum of over Rs. 4,000, representing the value of the deficit quantity, to the first defendant, the Mysore Iron and Steel Works, He accordingly sued defendants 2 and 3 seeking to recover the amount from the one or the other. A question of jurisdiction was raised and it was found by the trial Court that it had no jurisdiction in respect of the claim against both defendants 2 and 3. A revision was taken to the High Court. The High Court agreed that the trial Court had no jurisdiction in respect of the claim against the Scindia Steam Navigation Company and gave a choice to the plaintiff to proceed only against the third defendant in the City Civil Court or to file a plaint against both the Scindia Steam Navigation Company and the third defendant-petitioner in the Visakapatnam Court. The plaintiff re-presented the plaint in the City Civil Court confining his relief as against the third defendant only.

At this stage, the third defendant filed a third party application seeking to implead the second defendant as a third party on the ground that the third defendant is entitled to indemnity as against the Scindia Steam Navigation Company. The proposed third party, the Scindia Steam Navigation Company, opposed the petition on the ground that the third defendant himself could not have any cause of action against the second defendant at Madras.

The learned Assistant Judge came to the conclusion that the objections raised by the Scindia Steam Navigation Company was sound and that this party could not be impleaded. It is against this order that the present revision petition is directed.

The principal ground that has been raised is that the learned trial Judge has not followed the decision in Subbulal Saheb v. Perianna Pillai1. In this case, the question that was considered was whether in support of an application to implead a third party, privity of contract between the applicant and the third party was essential. It was held that it was not. The learned Chief Justice observed:

“Generally speaking, there will not be such a privity in a claim falling under Order 8-A which the defendant sets up against a third party. If there was direct privity, then the third party would have been necessary......”

I cannot see how this decision has been misapplied by the learned Assistant Judge. In paragraph 4, the trial Court observed:

“It is true that it is not necessary that for an application to implead a person as third party under Order 8-A, rule 1, Civil Procedure Code, there should be privity of contract between the plaintiff and a third party. So, the fact that the plaintiff has been found to have no jurisdiction to entertain this suit against the second defendant in this Court will not stand in the way of the third defendant having the second defendant impleaded in this suit as a third party provided the third defendant is able to establish a