@JUDGMENTTAG-ORDER
Balakrishna Ayyar, J.@mdashThe question I have to decide here is this. When in a suit under Order VII, of the Original Side Rules of this Court,
the Defendant admits the Plaintiff''s claim, can he avail himself of the third party procedure for which provision is made in Order V-A?
2. For various reasons which he gave, the learned Master answered the question in the negative.
(1) Dealing with the argument that in similar circumstances the third party procedure is available to the Defendant in England, the learned Master,
stated:
It is noticed that in England it is left to the option of the Plaintiff to take out a special writ of summons under Order III, Rule 6 of the Rules of the
Supreme Court, whereas under the Original Side Rules, suits coming within the scope of Rule 1 of Order VII should be admitted and numbered
only as a summary suit.
(2) He took the view that Order VII is a self-contained chapter and Rule 2, specifically excludes the ordinary procedure except when the suit is
ordered to be converted into an ordinary suit.
(3) There being no provision in Order VII itself for applying the third party procedure to summary suits, the use of the words, in any suit in Rule 2
of Order V-A, cannot have the effect of modifying the specific rule excluding the ordinary procedure for suits under Order VII.
(4) He next remarked,
Besides under Rule 1 of Order V-A, the third party notice is to be served ''within the time limited for filing his written statement of defence''. No
written statement can be filed in a summary suit as a matter of course and when a written statement is filed in such a suit, pursuant to an order of
Court granting leave to defend, the suit loses its summary character and becomes a regular suit. The use of the expression ''written statement'' in
Rule 1 seems to indicate that the third party procedure is not intended to be availed of in a summary suit.
(5) He finally observed that there appeared to be no instance till now in which a third party notice was directed in a summary suit.
3. A good deal can be said for the view which the learned Master has taken. But we should bear in mind that we are dealing with rules of
procedure and that these rules do not in any way interfere with or abridge the substantive rights of any party. These rules were framed to prevent
multiplicity of proceedings and to secure an adjudication of disputes as expeditiously as is consistent with justice. If we bear these circumstances in
mind a more liberal and elastic view than that taken by the Master would seem to me to be justified. True, English practice is not binding on this
Court. But then these rules have been framed on the English model and we may properly ascertain how they are being worked in England. That,
under the English rules, the Plaintiff has an option of adopting either the summary or the more formal procedure does not appear to my mind to be
very material to the decision of the question before me; because if the Plaintiff anticipates that the proceedings would be protracted by the
interposition of third parties, and he could avoid that by resorting to the summary procedure he would do so. Order VII, is a self-contained order
only in a limited sense, because under Rule 9 of that order, the Court can at any time either of its own motion or on the application of a party
convert the suit into a regular suit and the moment the transfer is effected, the third party procedure would be available. It is true that the last words
in Rule 2 of Order VII specifically exclude the ordinary procedure in respect of suits under that order. But these words must be read subject to the
provision made under Rule 9, which permits a summary suit to be converted into an ordinary suit. The difficulty raised by Rule 2, which excludes
the ordinary procedure can, therefore, be resolved by utilizing the provision of Rule 9. One of the reasons which the learned Master gave and
which I have indicated as (4) above, does not present any insuperable difficulty. An invocation of the third party procedure--though there is
simultaneously an admission of the Plaintiff''s claims--may be treated as a sufficient ground for converting the suit from one under Order VII to one
under the ordinary procedure. In respect of the comment of the learned Master that there appears to have been no instance till now in which a third
party notice was directed in a summary suit, Mr. V.C. Gopalaratnam who has very considerable experience of the Original Side work of this
Court, stated at the bar that there have been such instances in the past. However that may be, I am inclined to prefer a construction which is more
consistent with convenience and the quick and efficient dispatch o� the business of the Court so long as that can be done without putting
excessive strain on the words used in the rules and Orders. It will also be appreciated that to deprive a Defendant in a suit instituted under Order
VII of the right to invoke the third party procedure where he is willing to admit the Plaintiff''s claim would be to invite him to put forward some plea
or other with a view to getting the suit converted into an ordinary suit and such temptations should, if possible, be eliminated.
4. I would, therefore, answer in the affirmative the question with which this discussion started. The result would be this. If the Defendant admits the
claim of the Plaintiff and at the same time invokes the third party procedure there will be a decree against the Defendant in favour of the Plaintiff but
at the same time a notice under Order V-A, will issue and the suit as between the Defendant and the third party will be converted into a regular
suit.
5. I am greatly obliged to Mr. V.C. Gopalaratnam for the assistance he gave me in this matter.
6. Time for issue of notice extended by two weeks.
