Authored By : Banerjee, Robert Fulton Rampini

Banerjee and Robert Fulton Rampini, JJ.

1. This appeal arises out of a suit brought by theplaintiffs-appellants for contribution, on the allegation that the plaintiffsand defendant No. 2 took from defendant No. 1 a 2 annas 5 gundas and a 15gundas share of a certain zamindari in putni by two separate documents; thatthereupon a suit was brought by one Prannath Nundy against the plaintiffs anddefendants Nos. 1 and 2 for enforcing specific performance of a contract togrant a putni to him of the said two shares; that that suit was decreed withcosts, and the whole costs decreed in favour of Prannath Nundy were realizedfrom the plaintiffs. The plaintiffs seek to recover two different amountsfrom the two defendants Nos. 1 and 2.

2. The defence of the defendants was a denial of liability.They also pleaded that the suit was not maintainable; and they took someexception as to the extent of the liability of each.

3. The Courts below have thrown out the suit on the groundthat no suit for contribution lies by one of several joint wrong-doers againstthe others.

4. In second appeal it is contended that the Lower AppellateCourt is wrong in finding that the plaintiffs and the defendants were jointwrong-doers, or that they conspired together in setting up a false defence inthe suit in which the decree (or costs was made, when there is no legalevidence to sustain the finding; and further that the Lower Appellate Court iswrong in treating this suit as one for contribution by one of severalwrong-doers against the others.

5. Upon the first point what the Lower Appellate Court saysis this: "From the grounds of appeal of the original suit, it is clearthat the Court held that the plaintiffs and the defendants made a conspiracy todefeat the contract between the defendant No. 1, Sri Gobind Chowdhry andPrannath Nundy, and, as such, were joint wrong-doers, and they knew that theywere doing an illegal and wrongful act." Exception is taken to thisfinding on the ground that the grounds of appeal in the former suit could notbe used as evidence to establish the fact found. We are of opinion that thiscontention is correct. The utmost that the grounds of appeal can be taken toshow is that the plaintiffs, who were some of the appellants, admitted in theirgrounds that the finding of the first Court was what the Lower Appellate Courtin this case states it to be. But though that may be so, the finding of theCourt in the former suit would be no evidence in the present suit of the factfound, for this simple reason, that that finding was arrived at in a case inwhich the present plaintiffs and the defendants were all co-defendants and athird party was the plaintiff. This is the rule of law laid down by a FullBench of this Court in Surender Nath Pal Chowdhry v. Brojo Nath Pal ChowdhryI.L.R. 13 Cal. 352 [LQ/CalHC/1886/130] . The finding of the Lower Appellate Court upon this pointcannot therefore stand.

6. The next question is whether the case should be remandedfor the determination of the question whether the plaintiffs and thedefendants in this case combined to defeat the plaintiffs in the former suit,and with that object put in false defences. We are of opinion, having regard tothe manner in which this case has been dealt with by the Courts below, chat if thedetermination of this question is necessary for the right decision of the case,the case ought to go back to the Court of First Instance. It becomesimportant,therefore, to determine whether it is necessary for the decision ofthe case that the question stated above should be determined. The learned Vakilfor the appellants relies upon the case of Brojendro Kumar Roy Chowdhry v. RashBehari Roy Chowdhry I.L.R. 13 Cal. 300 [LQ/CalHC/1886/125] in support of his contention that theplaintiffs in a case like this are entitled to contribution quite irrespectiveof the question referred to above, as the suit which resulted in the award ofcosts in respect of which contribution is asked for was a suit based, not upontort, but upon contract. But we are of opinion that that case isdistinguishable from the present one, as no question arose in that case as towhether the parties who were made liable for damages and costs in that suit hadincurred that liability by reason of their having set up any false defence. Onthe other hand, we think the case of Vayangara Vadaka Vittil Manja v.Pariyangot Padingara Kuruppath Kadugochen Nayar I.L.R. 7 Mad. 89 is much morein point upon this question. In that case it was held that where theplaintiffs colluded with the defendant in a former suit to endeavour to defeatthe plaintiffs there, and were made liable for costs, no suit for contributionin respect of such costs would lie. Following this decision of the Madras HighCourt, which in our opinion lays down a wholesome rule, we think the case oughtto be remanded to the first Court for the determination of the question statedabove and of any other question relative to the apportionment of liability thatmay be found necessary.

7. The costs will abide the result.

Case remanded.

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Gobind Chunder Nundy and Ors. vs. Srigobind Chowdhry andOrs. (08.12.1896 - CALHC)