On the 10th of July 1877, Nicol, Fleming & Co., of ??? entered into a contract with Pestoujee Eduljee ??? the purchase by the former of a cargo of wheat then ??? shipped on board the ship “Caroline” at Chandballi, which was to sail for Madras some time in the mouth of July ???. The purchase was made by sample.
On the 16th day of July 1877, the defendant Nicol, Fleming & Co., by telegram, offered the above cargo for sale ??? plaintiffs, who telegraphed their acceptance on the same ???. On the 18th of July 1877, Nicol, Fleming & Co. sent the ??? of the rice, upon which the sale by them had been made ??? plaintiffs at Madras. When the “Caroliue” arrived at ??? the plaintiffs complained that the bulk was not equal to ??? and subsequently instituted the present suit for ??? account of the alleged inferior quality of the rice.
Nicol, Fleming & Co., while denying that they had been their contract with the plaintiff, or that he was entitled the cover damages, alleged that the question between the ??? and themselves was precisely the same as that between ??? Eduljee and themselves; and on this ground they obtained a rule, ??? on the plaintiffs and Pestonjee Eduljee to show cause why the latter should not be added and joined as a defendant in the suit.
J.D Bell, and Stokoe, for Pestonjee Eduljee, showed cause.— Pestonjee Eduljee cannot be made a party to this suit under section 32, as all the questions in the suit can be settled without him. Further, the present case is not within the class of cases ??? which parties are added under the Judicature Acts, which are ??? of principal and surety—Turner v. The Hednesford Gas ??? 3 Ex. D., 145; 47 L.J Ex., 296; and of principal and agent— Ex-parte Smith; in re Collie, 2 Ch. D., 51; and see Form B, No. ??? Appendix to Judicature Acts. In Swansea Shipping Co. v. Duncan, Fox, & Co., 1 Q.B.D, 644, the custom of the port would have made ??? person added liable to the plaintiff. In Harry v. Davey, 2 Ch. D., 721, the Court refused to add parties in a case similar to the ???. The question to be tried here is not the same between ??? sets of parties as it was in Benecke v. Frost, 1 Q.B.D, 419.
Hill, (for Branson,) for the plaintiffs.—In all the English cases ??? a party has been added in cases similar to the present Swansea Shipping Co. v. Duncan, 1 Q.B.D, 644; Bower v. ???, 1 Q.B.D, 652) the order was made under order 16, rule ???. Such an order could not be made under order 16, rule 13, and ??? is this rule which has been re-enacted in the Code of Civil procedure. Again, we should not have been called upon to ??? cause; there is no provision warranting such a course in ??? Code of Civil Procedure, nor is there, even under the English ???, the only reason for giving notice under the Judicature Acts ??? to enable the third parties to come in if they wish.
??? Phillips, for the defendants, Nicol, Fleming & Co.—The issue between the plaintiff and the defendants is the same as that between the defendants and Pestonjee Eduljee. That being so, this ??? is within the principle of the English cases. It has been ??? that there must be a direct liability of the outsider to ??? plaintiff on the same claim as the defendant is liable upon, ??? that is contradicted by Benecke v. Frost, 1 Q.B.D, 419, and ??? Swansea Shipping Co. v. Duncan, 1 Q.B.D, 644. The object is to prevent the same question from being litigated twice or differently decided by different juries. The Swansea Shipping Co. v. Duncan shows that the parties must appear and take part in the trial, if a material question in the action is also ??? question between the defendant and the third person, and that ??? is the case here.
Pontifex, J.:— In this case Nicol, Fleming & Co., merchants, of Calcutta purchased from one Pestonjee Eduljee, a cargo of rice, ??? Chandballi, of three different qualities, according to ???. A few days afterwards Nicol, Fleming & Co. telegraphed ??? Hajee Mahomed Badsha Saheb at Madras an offer to sell to him a cargo of rice then at Chandballi, by description, and that ??? was accepted by telegram. Two days after receiving ??? telegram, Nicol, Fleming & Co. sent down to Madras ??? different samples of the cargo. These samples were received by ??? the plaintiff as not differing from the previous description ??? no objection was made to them. Subsequently to the arrival ??? the cargo at Madras, plaintiff complained that the bulk of the ??? did not correspond with the samples; a survey was held at which the bulk was compared with the samples, and the whole ??? between the plaintiff aud the defendant seems to me to depend ??? the question whether the bulk did or did not correspond with the samples sent down to Madras by Nicol, Fleming & Co. two days after receiving the telegram. If that be so, and if Nicol, Fleming & Co. sent proper samples of the rice which they bought ??? Pestonjee Eduljee, then Nicol, Fleming & Co. would have the same complaint against Pestonjee Eduljee, as the plaintiff Najee Mahomed has against them, namely, that the bulk of the ??? shipped did not correspond with the sample.
In this state of circumstances Hajee Mahomed Badsha ??? has filed a suit for damages against Nicol, Fleming & Co. ??? because the bulk of the rice shipped to Madras was not ??? the samples, and in that suit Nicol, Fleming & Co. have ??? for an order that Pestonjee Eduljee may be added as a ??? so that the question which is common to Pestonjee Eduljee ??? Nicol, Fleming & Co. may be tried in the former's presence support of this application Nicol, Fleming & Co. rely on section 32 of the new Civil Procedure Code. By that section it is ??? that “the Court may at any time,” either upon or without the application of either party, “and upon such terms as the Court thinks just, order that any plaintiff be made a defendant, or that any defendant be made a plaintiff, and that the name of any person who ought to have been joined, whether as plaintiff or defendant or whose presence before the Court may be necessary in order ??? enable the Court effectually and completely to adjudicate upon necessary settle all the questions involved in the suit, be added.” According to the strict interpretation of that section, I cannot say that, ??? the suit which he has preferred against Nicol, Fleming & Co., ??? plaintiff ought to have made Pestonjee Eduljee a party; nor do ??? think that Pestonjee Eduljee is necessary as a party, “in order to enable the Court effectually and completely to adjudicate ??? and settle all the questions involved in the suit.” Those ??? can be settled effectually without him. No doubt it ??? save expense and further litigation if he could be added, ??? I do not think it is necessary that he should be.
On referring to section 32, I find it is taken verbatim from under 16, rule 13, of the Judicature Act of 1875. Now, under rule ??? of the same order Nicol, Flemiug & Co. would be entitled to have ??? Eduljee added as a party; for though in the forms given ??? the appendix to the Act—Appendix B., form 1—the illustrations put are confined to cases of principal and agent or principal and ???, and though most of the cases which have been cited from ??? Law Reports are also of that nature, yet there is one case, that ??? the Swansea Shipping Co. v. Duncan, I, Q.B.D, 644, which ??? goes far enough to show that if order 16, rule 18 were a ??? of the Civil Procedure Code, Pestonjee Eduljee could be as a party.
But I am of opinion I have not the power to add ??? as a party. The words of the section do not ??? me to do so; and the fact that section 32 is taken from under 16, rule 13, shows that order 16 rule 18, was not intended ??? the framers of this Code to apply to the procedure in India. The application will be dismissed with costs.