The suit out of which this petition arises was O. S. No. 41 of 1909 brought by the plaintiff. The sum paid by plaintiff was according to the decree in O. S. No. 41 of 1909 payable by plaintiff and defendants jointly. The suit was to recover possession of property which was trespassed upon by the defendants and a decree was passed in favour of plaintiff with costs. If the defendants were joint tort feasors there would prima facie be no liability for contribution. The Subordinate Judge framed a preliminary issue as to whether the plaintiff was in law entitled to recover any contribution for costs from the defendants. The judgment in O. S. No. 41 of 1909 was filed as Exhibit I without any objection by the plaintiff. The Subordinate Judge states and it is not disputed before me that neither party let in any evidence though time was given to them to do so. Each party filed a document (plaintiff filing Exhibit A and defendant Exhibit I). The Subordinate Judge referred to the findings in the judgment, Exhibit I, which show that the defendants in that suit not only trespassed but fabricated false documents to defeat the claim of the plaintiff in that suit and held that no suit for contribution would lie under the circumstances.
Objection is taken that the judgment in O. S. No. 41 of 1909 is not admissible in evidence and reliance has been placed on Gobind Chunder Nundy v. Srigobind Chowdhry(1), which follows the decision in Surender Nath Pal Chowdhry v. Brojo Nath Pal Chowdhry(2).
I am of opinion that the judgment in a suit which is the basis of a suit for contribution is admissible in evidence in a suit for contribution. As pointed out in Siva Panda v. Jujusti Panda(3), it is not open to the parties to impugn the propriety of the judgment though it will be open to the party from whom contribution is sought to show that “as between the joint debtors the plaintiff is solely liable to the debt or that he is not equally liable with the plaintiff or that both being joint tort feasors in a sense in which on public grounds the right of contribution is negatived, the suit is not maintainable.” If it is not open to the parties to impugn the judgment I do not see how it can be said that the judgment in a suit to which all the parties to the suit for contribution were parties is not admissible in evidence.
The decision is Surender Nath Pal Chowdhry v. Brojo Nath Pal Chowdhry, has as pointed out in Tepu Khan v. Rajani Hohun Das(4), been considerably shaken by the decision of the Privy Council in Ram Ranjan Chakerbati v. Tamnarain Singh(5) and Bitto Kunwar v. Kesho Pershad(6). The preponderance of authority is in favour of the view that in cases like the present the judgment to which the plaintiff and defendants were parties would be admissible even though it may not be a judgment in rem or operate as res judicata. I need only refer to Tepu Khan, v. Tajani Mohan Das and Lakshman v. Amrit(7)
As neither party adduced any evidence and as the judgment on the previous suit is admissible in evidence, I think the Subordinate Judge was right in basing his decision on the findings in the previous judgment which show that the present plaintiff was a joint tort feasor, In a suit for contribution the plaintiff must show some equity in his favour. There is none when two persons join together and trespass on the property of a third person.
The petition fails and is dismissed with costs.
C. K.Petition dismissed.