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Suput Singh v. Imrit Tewari
Summary of the Legal Opinion (Garth, C.J.)
Factual and Procedural Background
The suit under consideration was brought on 14 December 1877 by Imrit Tewari, Kolopur Tewari, Haridar Tewari and Jhkinga Tewari. These plaintiffs had paid the whole of the damages decreed against them and other defendants in a prior suit arising from cutting down trees on land where they were tenants. After the plaint was filed but before summons were issued, the plaintiffs assigned their interest in the present claim to Syyud Mohurram Hossein and Sarup Singh. The summons were issued in the names of the assignees rather than the original plaintiffs. At the time the assignees' names were first introduced, the claim would have been barred by limitation. The lower courts held the suit was not barred, reasoning that section 22 of the Limitation Act should be read with section 32 of the Code of Civil Procedure. The present appeal raises questions about limitation, the effect of the assignment and summons, and whether the payors may recover contribution for amounts they paid at different times.
Legal Issues Presented
- Whether limitation applies to the whole of the plaintiffs' claim given the assignment of the claim to assignees and the fact that summons were issued in the assignees' names (i.e., whether limitation should be reckoned from the time the assignees were made parties).
- Whether the plaintiffs are barred from recovering contribution in respect of payments made at an earlier date (specifically Rs. 200 paid on 17 July 1874) because three years had elapsed before bringing this suit.
- Whether, as between persons jointly subject to a prior decree, there exists any right of contribution at all — which turns on whether those defendants were "wrong-doers" (knew or ought to have known they were doing an illegal or wrongful act) or acted under a bona fide claim of right.
Arguments of the Parties
Appellant's Arguments (Mr. Sandel)
- Although the original plaintiffs might initially have been the proper parties, because the defendants were summoned in the names of the assignees, limitation should be reckoned from the time those assignees were first made parties to the proceedings.
- With respect to the Rs. 200 paid on 17 July 1874, the plaintiffs did not bring suit within three years of that payment and therefore are barred from recovering contribution for the excess over the rateable share (the rateable share being about Rs. 76).
- Implicitly challenged whether defendants made liable under the former decree are bound to contribute equally (this affects the calculation of any recoverable contribution).
Lower Courts' View (as described in the opinion)
- Both lower courts held the suit was not barred by limitation, because they read section 22 of the Limitation Act together with section 32 of the Code of Civil Procedure and concluded the case did not fall within the meaning of section 22 when so read.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Sreeputty Roy v. Loharam Roy, 7 W.R. 384 | Establishes that whether a suit for contribution lies depends on whether the defendants were "wrong-doers" — i.e., whether they knew or ought to have known they were doing an illegal or wrongful act. | The court relied on this rule to frame the central inquiry: if the defendants were wrong-doers, no suit for contribution would lie; if they acted under a bona fide claim of right, contribution might lie and apportionment must be examined. |
| Merrnyweather v. Nixan, 8 T.R. 186 : 2 Smith's L.C. 546 | Provides authority that where defendants are wrong-doers, a suit for contribution will not lie. | Cited as supporting authority for the proposition that wrong-doers cannot seek contribution from co-defendants. |
| Fairbrother v. Ansley, 1 Camp 344 | Another authority supporting the principle that no contribution lies among wrong-doers. | Also cited to reinforce the rule that wrong-doers are not entitled to contribution from co-defendants. |
Court's Reasoning and Analysis
On the limitation point arising from the assignment and the issuance of summons in the assignees' names, the Court analyzed whether section 32 of the Code of Civil Procedure applied so as to make the suit barred. The Court concluded that section 32 was not properly applicable. The original plaintiffs were the only persons who could initially institute the suit; when they assigned their interest the assignees, if they became parties, would continue the suit not by substitution but in conjunction with and as representatives in interest of the original plaintiffs. Summoning the defendants in the names of the assignees was characterized as a mere mistake in form. On that basis the Court held the suit was in time as against the limitation objection arising from the assignment/formal summons issue.
The Court then turned to the more substantial limitation and substantive question concerning contribution. It noted that payments by the original plaintiffs occurred at two different times and focused on a payment of Rs. 200 on 17 July 1874. The plaintiffs' rateable share would have been about Rs. 76, and Mr. Sandel argued recovery of the excess was time-barred. The Court explained that whether the plaintiffs can recover contribution in respect of any payment depends first on whether co-defendants have any right of contribution among themselves. Relying on the Full Bench decision in Sreeputty Roy v. Loharam Roy and other authorities, the Court stated the governing inquiry is whether the defendants in the former suit were "wrong-doers" (knew or ought to have known their conduct was illegal or wrongful). If they were wrong-doers, no contribution claim lies; if they acted under a bona fide claim of right, contribution may be available and apportionment between defendants must be examined.
Accordingly, the Court found it necessary to remit the matter to the Court of First Instance to ascertain the circumstances of the former suit, the nature of the wrongful act, and—if a right of contribution exists—what part each defendant took and in what proportions they ought to contribute. The Court also recorded that an offer of compromise had been made by Mr. Sandel and gave the parties a fortnight to settle; failing settlement, the Court directed that the judgments of both lower courts be reversed and the case remanded for retrial in light of the observations made.
Holding and Implications
The Court held that the suit was not barred by limitation on the ground that summons were issued in the names of assignees (section 32 CPC was not applicable), and that the question of contribution requires remand for further inquiry.
Implications:
- The procedural defect of having summoned defendants in the assignees' names was treated as a mistake in form; the original plaintiffs' action was not barred for that reason.
- On the substantive issue of contribution, the case must be returned to the Court of First Instance to determine (a) the precise circumstances and nature of the wrongful act in the former suit, (b) whether the defendants were wrong-doers (in which case no contribution lies), and (c) if contribution is available, the extent to which each defendant should contribute (apportionment).
- The specific question whether recovery is time-barred for the Rs. 200 payment of 17 July 1874 (beyond the plaintiffs' rateable share) remains to be considered by the Court below in light of the remand.
- Unless the parties settle within a fortnight from the date of the judgment, the judgments of both lower courts will be reversed and the case remanded for retrial. The costs are to abide the ultimate result.
- No new broad precedent altering the cited principles was announced; the Court applied existing authorities to direct a factual inquiry and retrial on contribution issues.
Garth, C.J:— The first point raised by Mr. Sandel on behalf of the appellant is, whether limitation does not apply to the whole of the plaintiff's claim.
It appears that the suit was brought on the 14th of December 1877 by Imrit Tewari, Kolopur Tewari, Haridar Tewari, and Jhkinga Tewari, who had paid the whole of the damages decreed against them and other defendants in a former suit for cutting down some trees growing upon land, of which they were the tenants.
After the plaint had been filed, and before the summons to the defendants had been issued, the plaintiffs assigned their interest in the present claim to certain other persons, named Syyud Mohurram Hossein and Sarup Singh, and it seems that the summons to the defendants, issued in the names of those persons, (the assignees) and not of the original plaintiffs in the suit. It also appears that at the time when the assignees' names were first introduced into the proceedings, the claim would have been barred by limitation.
It has been held by both the lower Courts that the suit is not barred, because they consider that section 22 of the Limitation Act ought to be lead with section 32 of the Code of Civil Procedure; and that reading those sections together, this case does not fall within the meaning of section 22 of the Limitation Act.
It has now been contended by Mr. Sandel, that although the original plaintiffs might have been the proper persons to sue in the first instance, and although they might have been the trustees for the persons to whom they afterwards assigned the claim, still as the defendants were summoned to answer the suit of assignees, limitation ought to be reckoned as from the time when those persons were first made parties to the proceedings.
We think that this is not so; and that the case is one, to which section 32 of the Code of Civil Procedure is not properly applicable.
In the first instance, the original plaintiffs were the only persons who could institute the suit; and when they afterwards assigned their interest, it was perhaps not necessary for the persons, to whom they assigned it, to become parties at all; but if they did so, they would only continue the suit, not in substitution, but in conjunction with, and as the representatives in interest of, the original plaintiffs; and that it was merely a mistake in form to have summoned the defendants at the suit of the assignees. We think, therefore, that under the circumstances the suit is in time.
Then another question of limitation has been raised, which appears to us entitled to more weight; and that is, that the payments made by the original plaintiffs, in respect of which they now sue for contribution, were made at two different times.
A sum of Rs. 200 was first paid by them to the plaintiffs in the former suit on the 17th of July 1874; and as to this it is contended that the plaintiffs are not entitled to recover contribution, because they did not bring this suit within three years from that date.
Now the rateable proportion which the plaintiffs ought to have paid, assuming that each of the persons who were made liable under the former decree, were bound to contribute equally to the amount awarded, would be about Rs. 76; and Mr. Sandel contends, that as regards the difference between Rs. 76, and the sum of Rs. 200 paid on the 17th July 1874, the plaintiffs, even ??? that they are entitled to sue at all, are barred from recovering contribution.
This would, of course, depend upon the further question which has also been argued by Mr. Sandel, and which we shall deal with presently, was whether the persons against whom the original decree was made are bound to contribute equally, or to any or what extent, to the sum decreed in the former suit; and this is a point which the Court below, when the case comes before it again, will have to take into consideration.
But the first and the main question is, whether, as between the persons against whom jointly the decree in the former suit was pronounced, there is any right of contribution at all, and this depends (according to the rule laid in the Full Bench case to which we have been referred—Sreeputty Roy v. Loharam Roy, 7 W.R, 384), upon the question, whether the defendants in the former suit were wrong-doers in the sense that they knew or ought to have known, that they were doing an illegal or wrongful Act.
In that case no suit for contribution would lie; (see also Merrnyweather v. Nixan, 8 T.R, 186 : 2 Smith's L.C, 546, and Fairbrother v. Ansley, 1 Camp 344.)
But on the other hand, if the defendants in the former suit were not guilty of a wrong in that sense, but acted under a bona fide claim of right, and had reason to suppose that they had a right to do what they did, then no doubt they might have a right of contribution inter se; and in such case the Judge in the Court below was bound to enquire what share each took in the transaction; because, according to circumstances, one or more of them might be excused altogether or in part from contributing; as for instance, (to use an illustration put by Sir Barnes Peacock), one of them might have acted as the servant, and by the command of the others, or the others might have been the only persons benefited by the wrongful act; in which case those who ware alone benefited, or who ordered the servant to do the act, would not be entitled to contribution.
It is, therefore, necessary, that the case should go back to the ??? of First Instance, in order that it may be ascertained what were the circumstances of the former suit, and what was the nature of the wrongful act of which the defendants were found guilty; and if the wrong was of such a nature as to justify a suit for contribution, then it must be further ascertained what part these defendants took in the matter, and whether they ought to contribute at all, and in what proportions.
Mr. Sandel appears to have offered very fair terms of compromise to his opponents, which it may be very wise for them to accept; but unless the matter is so settled within a fortnight from this date, the judgments of both the lower Courts will be reversed, and the case will be remanded to the First Court for retrial, having regard to the foregoing observations.
The costs will abide the ultimate result.
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