VIII-A 1.Third party notice:- Where a defendant claims to be entitled to contribution from or indemnity 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 copy of the plaint and shall be served on the third party according to the rules relating to the service of summons.
2.Effect of notice:- The third party shall, as from the time of the service upon him of the notice, be deemed to be a party to the action with the same rights in respect of his defence against any claim made against him and otherwise as if he had been duly sued in the ordinary way by the defendant.
3.Default by third party:- If the third party desires to dispute the plaintiff's claim in the suit as against the defendant on whose behalf the notice has been given, or his own liability to the defendant, the third party may enter appearance in the suit on or before the date fixed for his appearance in the notice. If he does not enter appearance he shall be deemed to admit the validity of the decree that may be obtained against such defendant, whether by consent or otherwise and his own liability to contribute of indemnify as the case may be, to the extent claimed in the third party notice provided always that a person so served and failing to appear may apply to the Court for leave to appear, and such leave may be given upon such terms, if any,as the Court shall think fit.
4.Procedure on default:- Where the third party does not enter appearance in the suit and the suit is decreed by consent or otherwise in favour of the plaintiff, the Court may pass such decree as the nature of the case may require, against the third party and in favour of the defendant on whose behalf notice was issued, provided that execution thereof shall not be issued without leave of the Court until after satisfaction by such defendant of the decree against him.
5.Third party directions:- If the third party enters appearance, the defendant on whose behalf notice was issued may apply to the court for directions and the Court may, if satisfied that there is a question to be tried as to the liability of the third party to make the contribution or pay the indemnity claimed, in whole or in part, order the notice, to be tried in such manner, at or after the trial of the suit, as the court may direct; and if not so satisfied may pass such decree or order as the nature of the case may require.
6.Leave to defend:- The Court may, upon the hearing of the application mentioned in Rule 5 give the third party liberty to defend the suit upon such terms as may be just, or to appear at the trial and take such part therein as may be just, and generally may order such proceedings to be taken, documents to be delivered or amendments to be made, and give such directions as appear proper for the most convenient determination of the question or questions, in issue, and as to the mode and extent in or to which the third party shall be bound or made liable by the decree in the suit.
7.Costs:- The Court may decide all questions of costs, as between the third party and the other parties to the suit, and may order anyone or more to pay the costs of any other, or others, or give such direction as to costs as the justice of the case may require.
8.Question between co-defendants:- Where a defendant claims to be entitled to contribution from or indemnify against any other defendant to the suit, a notice may be issued and the same procedure shall be adopted for the determination of such questions between the defendants as would be issued and taken, if such last mentioned defendant were third party; but nothing herein contained shall prejudice the rights of the plaintiff against any defendant in the suit.
9.Further parties:- Where any person served with a third party notice by a defendant under these rules claims to be entitled to contribution from or indemnity against any person not already a party to the suit, he may, by leave of the Court, issue a third party notice to that effect and the preceding rules as to the third party procedure shall apply mutatis mutandis to every notice so issued and the expressions 'third party notice' and 'third party' in these rules shall apply to and include every notice so issued and every person served with such notice respectively".
The said provisions mentioned in all the rules would go a long way to show that those rules are enabling provisions for the purpose of preventing the same question being tried once again with possibly different results and to prevent multiplicity of actions to enable the court to settle the dispute between all the parties in one action. Therefore, it is clear that the idea behind the filing of this application seeking for 3rd party procedure under Order VIII (A) C.P.C by the defendant should have been for the purpose of avoiding multiplicity of proceedings.
11. Per contra, we could see that there was already an arbitration proceedings in between the defendant and the 3rd party which could be seen from the typeset filed by the 3rd party. Accordingly an award was passed on 17.10.2000 as seen from Pages 57 to 82 of the typeset. The said award was dealing with the total cost in reaching the Port Blair and other aspects. The consequential losses due to water seepage was estimated only at Rs.1,16,650/-. The entire damage in 19th column has been not allowed due to want of evidence. Now the claim has been made by the defendant on the basis of the decree likely to be passed upon the claim made by the plaintiff against him for which he has claimed that the 3rd party procedure to be adopted. The arbitration proceedings even though held in between the defendant and the 3rd party had untouched the liability of the 3rd party in respect of the contribution payable to the claim of the plaintiff. Therefore, the arbitration proceedings cannot be a bar for the defendant seeking to issue 3rd party notice to the 3rd respondent. It cannot be said that the 3rd party would be made liable to a double payment for the same cause of action. However it has to be decided only after a full fledged trial in the suit, as the 3rd party proceedings is also to be conducted to the suit,if opportunity is given to both parties for agitating their case.
12. As regards limitation point raised by the 3rd party is concerned, the liability towards contribution would normally be started on the fixation of liability against the defendant in this suit. Therefore, the procedure adopted after lapse of 8 years under Order VIII (A) C.P.C will not be a bar for the defendant to launch the claim against the 3rd party that could adjudicate defendant's claim including the arbitrator's decision in favour of defendant against the 3rd respondent as 3rd party in the said proceedings. The restriction of jurisdiction entered in between defendant and 3rd party for the jurisdiction of Bombay only is for the arbitration proceedings. Moreover it was a restriction only in between defendant and 3rd party. It will not bind the dispute interse between plaintiff, defendant and 3rd party. The cause of action for the 3rd party proceedings is arising out of the liability of the defendant to the plaintiff and therefore there is no impediment for the defendant to initiate 3rd party proceedings against the 3rd respondent in the plaintiff's suit.
13. The judgment of this court is as cited by the learned counsel for the 3rd respondent reported in 2008 (3) CTC 823 in between Vestas RRB India Ltd. Vs. Dammar Lines was to the effect that the ousting of jurisdiction as entered into between parties will apply to the 3rd party proceedings also and such 3rd party proceedings cannot be maintained like that of the suits cannot be applied here, since the agreement in respect of restriction of jurisdiction was only for the appointment of arbitrators and not in respect of the liability to pay the contribution.
14. No doubt the 3rd party has every right as to the liability to contribute or indemnify the defendant in the said proceedings whenever the trial has been commenced. 3rd party is also entitled to step into shoes of the defendant and fight the case of the plaintiff with all the grounds available to the defendant and at the same time to raise the ground against the defendant that the said arbitration had already concluded the claim in between them which may bar the claim of the defendant. However, the arbitration award produced by the 3rd party has not disclosed the liability to the defendant, on contribution has not been discussed in the arbitration award.
15. Therefore, I am of the considered view that an opportunity should have been given to the defendant for launching the 3rd party proceedings against the 3rd respondent as contemplated under Order VIII (A) C.P.C which are the beneficial provisions for all the parties to raise their disputes without going for multiplication of the proceedings.
16. For the fore going reasons, I am inclined to allow the application filed by the defendant for launching 3rd party procedure. I direct to issue 3rd party notice as contemplated under Order VIII (A) C.P.C to the 3rd respondent/ 3rd party. Application is ordered accordingly. No costs.
kpr