@JUDGMENTTAG-ORDER
K. Sadasivan, J.@mdashThe plaintiff is the revision petitioner. He sued the defendant for recovery of Rs. 145-56 Ps. based on an agreement to reimburse him in respect of the amounts paid which the defendant was bound in law to pay. Granite stones were quarried from the plaintiff''s property by the plaintiff jointly with the defendant who is a contractor and one Chanthuruthy Mohammed, who was in actual occupation of the property as lessee. Quarrying of stones for commercial purposes without permit is prohibited by statute. Action was, therefore, taken against all the three and by proceedings of the Collector of Kozhikode K. Dis 20020/64 dated 30-9-64, a fine of Rs. 375/- was levied on them payable jointly and severally as provided in Rule 22 of the Madras Minor Mineral Concession Rules, 1956. The Plaintiff who is the registered owner of the land was proceeded against first for the recovery of the fine and when attachment was taken out he paid the entire Rs. 375/- and got a discharge. According to him at the time of payment, the defendant and Chanthuruthy Mohammed had agreed to reimburse him to the extent of their liability, viz., Rs. 125/- each. It is for recovery of the amount due from the defendant with interest thereon that the suit was laid. The liability was denied by the defendant. He stated that no quarrying was done by him from the plaintiff''s property. He also stated that his share of the amount was made good by him already to the plaintiff, at the time the recovery proceedings were taken by the authorities against the plaintiff. The alleged agreement was also denied. Learned Munsiff finding that there was no evidence in support of the agreement which is the foundation of the liability has dismissed the suit. Before me the argument put forward was that the suit has to be construed as one for contribution by joint tortfeasor and under the law in India a joint tortfeasor of this type cannot claim contribution. The scope of the liability of the joint tortfeasor for contribution has carefully to be examined in the present context. Two or more persons may become joint wrongdoers, (a) by committing a tort in concert, or in pursuance of an unlawful conspiracy; and (b) by the principle of vicarious liability. In the present case it must be presumed that the plaintiff, defendant, and Chanthuruthy Mohammed had joined together and committed the tort in concert.
Joint wrongdoers are jointly and severally liable for the whole damage. The malice of one joint wrongdoer does not aggravate the damages payable by the other. They are together liable only for the actual damage caused................A decree for damages against joint wrongdoers may be realised from any one or more of them. The cause of action against them is single and indivisible. Therefore, a release granted to one discharges the others, (vide the Law Torts by Ramaswamy Iyer, 6th Edn, P. 568).
2. So far as contribution is concerned, the principle laid down in Merryweather v. Nixon (1799 8 T.R. 186 --Law of Torts by Ramaswamy Iyer, 6th ; dn. P. 568) was the law in England. In that case, the plaintiff and the defendant had caused wilful injury to a third person''s mill and machinery. It was held that:-
the plaintiff could not, on payment of the damages awarded against both of them to that person, recover his share from the defendant. "The reason of the rule is that a wrongdoer must himself bear the consequences of committing a tort and cannot enforce an agreement, express or implied, to share the profit or loss of an unlawful undertaking or to be identified against its consequences".
3. Thus the law was one of several joint wrongdoers who paid the whole damages had no right to claim contribution from the others. But the position has undergone changes after the passing of the Law Reform (Married women and Tortfeasors) Act, 1935, under which successive actions against tortfeasors, whether joint or otherwise, for the same damage are now allowed. It is also further indicated that one tortfeasor may recover contribution from another who is also liable in respect of the same damage; but not from a person who is entitled to be indemnified by him in respect of the liability. The amount of the contribution will depend on what the court considers just and equitable having regard to the plaintiff''s responsibility for the damage. The court has power to refuse contribution altogether or to grant contribution amounting to a complete indemnity.
4. In India, judicial opinion is divergent on this matter. The Allahabad High Court in
5. In an earlier case in
After a decree has been obtained against two or more tortfeasors, which imposes a joint and several liability upon each one of the Judgment-debtors, if one of them is made to pay the entire amount of the decree, justice and fair play require that he should be able to share the burden with his compeers, i.e. the other joint judgment-debtors. Further a tortfeasor may recover contribution from any other tortfeasor who is or would, if sued have been liable in respect of the same damage, whether as a joint tortfeasor or otherwise.
The court went further and stated that :-
Even in the case of conscious tortfeasors contribution should be allowed where the facts warrant the same.
6. But the Madras High Court seems to differ in this latter respect. It was held Yegnanarayana v. Jagannadha Rao (A. I. R. 1932 Mad. 1)
Where the doer of the act knows that the act he commits to be unlawful as constituting a civil wrong or a criminal offence and then deliberately brings about the commission of such an act, the doer is not entitled to contribution against the liability resulting from his action. An express agreement to indemnify him for the commission of such an act is void.
D agreed to sell some lands to V. P. knowing that there was a contract between D and V prevailed upon D to sell the lands to him as he was prepared to pay him a higher price and also to fight out the matter with V. V brought a suit for specific performance of the agreement to sell the lands in his favour making both D and P defendants to the suit. D did not contest the litigation and it was carried on solely by P. V obtained a decree in the suit and subsequently P sued both D and V to recover the amount of costs which he had incurred in the previous suit, viz., the money he had to spend as well as the money he had to pay V in that suit as costs. It was held that P''s interference in procuring a breach of the contract between D and V was tort and was actionable, and that to allow P to claim contribution from D for his costs incurred in the previous litigation would be unjust and unreasonable and that P could not be allowed the same.
7. Madhavan Nair, J., in the case cited supra, in elucidating the point has pointed out that:-
In England by various decisions the application of the rule in Merryweather v. Nixon- 8 T.R. 185--has been limited to a special class of cases. The limits of the rule together with the cases bearing on the point are thus stated in Salmond on Torts at p. 103, para 2:--
The better opinion is that the rule in Merryweather v. Nixon applies only to cases of wilful and conscious wrongdoing, and that it is not applicable to cases of mere negligence, accident, mistake, or other unintentional breaches of the law. In betts v. Gibbons-- 4 N & M. 64--it is said by Demman, C.J., the general rule is that between wrongdoers there is neither indemnity nor contribution; the exception is where the act is not clearly illegal in itself.
8. Finally the learned Judge has expressed himself in the following terms quoting Lord Herschell:-
Except in the case of wilful wrongdoing, there is, if the foregoing interpretation of the rule in Merryweather v. Nixon is correct, a right either of contribution or of indemnity between joint wrong-doers.
9. The limitation of the Rule in Merryweather v. Nixon is stated thus in Clerk and Lindsel on Torts page 60:-
If an act is manifestly unlawful, or the doer of it knows it to be unlawful as constituting either a civil wrong or a criminal offence, he cannot maintain an action for contribution or indemnity against the liability which results therefrom. An express promise of indemnity to him for the commission of such act is void.
10. The substance of the decision of the above Madras case is that if an act is manifestly unlawful, or the doer of it knows it to be unlawful as constituting either a civil wrong or a criminal offence, he cannot maintain an action for contribution or indemnity against the liability which results therefrom. Applying the principle to the present case, I must hold that the suit for contribution must fail. Here also the act committed was manifestly unlawful being in violation of the Madras Minor Mineral Concession Rules. It must be presumed that all the three of them joined together and committed the act knowing full well that they were acting in violation of the Rules. Such being the position action for contribution cannot lie. The plaintiff has set up an agreement to reimburse him. In the first place, the agreement is not proved and even if there was, in fact, such an agreement, in the view taken in the above Madras decision the agreement must be held to be void.
Where two or more persons join in committing a wrong, each is responsible for the whole of the injury sustained by their common act. As a general rule, no suit for contribution lies among joint tortfeasors, interse, although the damage may have been levied upon one only. The reason alleged is that any such claim to contribution must be based on an implied contract between the wrong-doers and such a contract is illegal as being made with a view to commit an illegal act. (Vide Indian Contract Act by Sanjiva Rao 6th Edn. Vol. II, p. 952).
11. Learned counsel, in the alternative, tried to put his claim under the Contract Act and Ss. 43, 69 and 70 were invoked in this connection; but on a scrutiny of these sections I do not think that the claim can be brought under any one of them. S. 43 deals with a joint promise made by two or more persons and in the absence of express agreement to the contrary, the promisee is entitled to compel any one or more of such joint promisors to perform the whole of the promise. Each of two or more joint promisors may compel every other joint promisor to contribute equally with himself to the performance of the promise unless a contrary intention appears from the contract. A, B and C jointly promise to pay D 3,000 rupees. D may compel either A or B or C to pay him the amount. We are not concerned in the present case with any such joint promise. S. 69 is to this effect:-
A person who is interested in the payment of money which another is bound by law to pay, and who therefore pays it, is entitled to be reimbursed by the other. Illustration, B holds land in Bengal, on a lease granted by A, the Zamindar. The revenue payable by A to the government being in arrear, his land is advertised for sale by the government B, to prevent the sale and the consequent annulment of his own lease, pays to the government the sum due from A. A is bound to make good to B the amount so paid.
12. Such a situation is also not present in the instant case. S. 70 is in respect of the obligation of a person enjoying the benefit of the non-gratuitous act.
Where a person lawfully does anything for another person, or delivers anything to him not interning to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of, or to restore, the thing so done delivered.
13. In order that this section may come into play, three conditions must be satisfied and they are:- (1) the person must have done the thing lawfully; (2) he must not have intended to do so gratuitously; and (3) such other person must have enjoyed the benefit. In my view none of these conditions exist in the present case. In the first place, the act committed was not lawful one, and secondly the payment was made not on behalf of the other; but in his own behalf to get himself freed from the liability. It cannot also be said that thereby the other defendants have enjoyed the benefit. The payment was made by him in discharge of the liability which is joint and several and when action was taken against him, he made the payment to get himself extricated. In any view of the matter, therefore, the plaintiff cannot claim contribution. The suit, in the circumstances, has rightly been dismissed. This revision petition in the circumstances is dismissed without costs.
