This is an. Application made by the defendant under Rule 168 of the. Sindh Chief Court Rules, to issue third party notice to M/s. Jack Barouk ("third patty") of Brussels, Belgium on the ground that, in the event of the, suit being decreed against the - defendant, the defendant is -entitled to indemnity And/or contribution against them. e. The plaintiffs have riled this suit against the defendant for recovery of Rs.27,38,333.60. The case of the plaintiffs, as set out in the plaint, is that the plaintiff No.1 exported from Karachi several consignments of carpets to the third party in Belgium on "consignment sale basis" and entrusted the relevant shipping documents to the plaintiff No.2 for collection of sale proceeds from the third party. The documents were sent by the plaintiff No.2, under instructions from the plaintiff No.1, to the defendant for collection with instructions, inter alia, as follows:-- " (d)In case if the shipment is lying uncleared for six (6) days from its Aariding at destination please store the goods at bonded warehouse under our lien and all charges regarding clearance of said shipment to be collected from the consignee.
(e) That the goods will be cleared at the free port area in Brussels and will be stored in the consignee's bonded warehouse under our lien (Bank. ContTol). The carpets -will be kept in open position for inspection and for demonstration to the buyers.
3. It is alleged that the defendants, in breach and total disregard of the, specific instructions, negligently allowed the third party to warehouse the consignments under his own name and custody thus losing effective control, possession and lien on the carpets; and, consequently, out of the total number 4 bales corisigne'd'and allegedl~ taken possession of by the third party 79 bales remained unsold. The plaintiffs were ultimately able to obtain possession of 41 bales but were unable to obtain delivery of 38 boes..They, therefore, claim from the defendants the value of the 38 bales of carpets with interest thereon.
4. The defendants, while denying tin their written statement, that they had committed breach of the instructions or were guilty of negligence , have taken the plea that it wa plaintiffs themselves who were negligent. It is further alleged in the affidavit in support of the application that the plaintiff directly with third party and sold 41 bales and that thus the original terms under which the defendant was to exercise general lien ceased to existand the relations changed with the result that the thirdparty is now directly responsible to the plaintiff. In these circumstances, it is claimed that in the event of any judgment and decree being passed against the defendants in this suit, the defendants will be entitled to judgment and decree for the same amount and the same terms against Jack Barouk.
5. Mr. Hussain Ali Merchant submits that in the circumstances, the defendants would be entitled, to indemnity or contribution against Jack Barouk either in law or in equity and that the, provisions of Rule 168 contemplate' issuance, of 3 party notice even in the, case of an equitable right to indemnity. 14 support of, his submission,, he relied on the: cases of, Rudrappa Chetty v. Narasimha Chetty and another (AIR -1965 Madras, 495) and Rangaswami Gounder v. Ramswami Gounder (AIR 1971 Madras 328).
6. In AIR 1965 Madras 495, in a suit by the assignee of the mortgagee against the mortgagor, the latter pleaded that he had, before the assignment, paid the amount due on the mortgage to the original mortgagee; and applied for issuance of third party notice to the mortgagee. It was observed that the term "indemnity" in Order 8-A, C.P.C. (in force in Madras) has to be in terpreted broadly and that the claim of the mortgagor against the original mortgagee might well be brought within the scope of an action for indemnity. In AIR 1971, Mad. 328, the maker of a promissiory note pleaded, in a suit against him by the assignee of the promissory note, that consideration money for the promissory note had been paid by the husband of the original payee of. The promissory* note and that the amount had been repaid to him in full. He (the maker), therefore, applied for issuance of third party notice to the husband of the original payee on the ground that he was entitled to indemnity from the latter. It was held that the right of indemnity need not necessarily arise from a contract and that the facts of the case established an equitable right of indemnity against the assignor's husband.
7. Relying on the above cases, Mr. Merchant asserts that the defendant has, in the event of the suit being decreed against it, equitable right of indemnity against the third party. He is, however, unable to say under which principle of equity the defendant is entitled to indemnity. It is not the case of the defendant that it did some act at the request, express or implied, of the third party or that the third party made any representation or did some act from which a promise or an obligation to indemnify can be spelled out. The defendant's case, on the other hand, is that it was not negligent and did not commit breach of the instructions; and that in the events which allegedly happened, the third party is directly responsible to the plaintiff. In this context, it-may be noted that legal proceedings between the defendant and the third party, in connection with the consignment in question, have terminated in favour of the third party in the Court in Brussels and that award has already been made in connection with the transaction in question in arbitration proceedings between the plaintiff and the defendant. In these circumstances, it is not clear what indemnity the defendant is entitled to claim against the third' party.
7. Be that as it may, Mr. SA. Sarwana, the learned counsel for the third pary contends that this Court has no jurisdiction against the third party who neither resides nor works for gain within the limits of territorial jurisdiction of this Court; and against whom no cause of action is alleged to have arisen within those limits.rd
8. The relevant provisions of the Sindh Chief Court Rules regarding third patty notice are Rules 168 and 169-which are reproduced below:.-- "(i) Where in a suit a defendant claims as against any person not already a party to the suit (hereinafter in this Chapter called the third party) that he is entitled to contribution or indemnity, he may make an application to the Court for leave to have a notice (hereinafter in this Chapter called the third party notice) issued to that effect to the third party. The Court may give such leave on an exparte application.
(2) The application shall state the nature and grounds of the claim and shall be supported by an affidavit.
(3) The third party notice shall be in Form No.9 in Appendix A and shall be served together with a copy of the aforesaid application and a copy of the plaint in the manner provided for service of summons."
"169. Subject to the provisions of section 22 of the Indian Limitation Act, 1908, the third party shall as from the time of the service upon him of the third party notice, be a party to the suit 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."
9. It will be seen that under Rule 168 a third party notice in Form 9, Appendix A to the Rules has to be issued to the third party requiring him to appear if, inter alia, he wishes to dispute the defendant's claim against him; and upon service of such notice, the third party shall as provided in Rule 169, "be a party to the suit with the same rights in respect of his defence against any claim ma~e against him and otherwise as if he had been duly sued in the ordinance wa by the defendant". The defences open to the third party would' include a defence that this Court has no jurisdiction. Mr. Merchant concedes that the third party does not reside or work for gain, and that no cause of action against him has arisen, within the limit of territorial jurisdiction of this Court but contends that, for the purposes of the application, those facts are not relevant, that is, in other words, the fact that this Court would have no jurisdiction against the third party after a third party notice is served upon him and he becomes, in terms of Rule 169, a party to the suit "as if he had been duly sued in the ordinary way" is not relevant for the purposes of this application and that third party notice might be issued notwithstanding lack of jurisdiction in the Court against the third party. I am not pursuadcd that there is any merit in the argument. Why cannot a person who would be'entitled to plead lack of jurisdiction in this Court at the trial of suit, in pursuance of the provisions of Rule 169, take the same plea at the hearing of an application under Rule 168? Mr. Merchant did not offer any reason and I see none. The counsel for the defendant relied upon Kerala Transport Co. v. Colonial Distributors (AIR 1971 Kerala 230). 1 am afraid I am unable to follow the reasoning of the learned Judge in that case which is contrary to the judgment in Roy and Chatterjee (Private) Ltd. v. Scindia Steam Navigation Co. Ltd. (AIR 1961 Madras 367) where in reference to the provisions of Order 8-A, Rule 2 which is identical with rule 169 of S.C.C. Rules, it was observed:-- "This rule clearly enables the third party to raise all grounds to the action as would be available to him as against the party defendant who seeks-to bring him on record; that is to say, if the petitioner who is the third defendant in the suit, sued the third party in a separate action, such third party would be entitled to raise the question of the jurisdiction of the Court in defence. Such a defence would also be open to the third party in this application to implead him as a third party."
10. Since this Court would have no jurisdiction against the third party, I am of the view that third party notice under Rule 168 cannot be issued to him. The application is, therefore, dismissed.
A.A./M-1583/K Ak 4--