# KUSHRO S. GANDHI & ORS v. N. A. GAJDAR & ORS

- **Citation:** [1969] 2 S.C.R. 959
- **Court:** Supreme Court of India
- **Decided:** 1968-11-27
- **Case number:** Civil Revision No. 325 of 1957
- **Bench:** S. M. Sikri, R. S. Bachawat
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kushro-s-gandhi-ors-v-n-a-gajdar-ors-4816
- **Pages:** 12

## Headnote

95i
Tort-Suit against several
tort-feasors for conspiracy-Unconditional
apology by one-Accepted by plaintiff and decree passed-If operate1 as
release of other joint tort-feasors.
Code of Civil Procedure
(5 of 1908).
SJ. 24 and 115-Revisiona/
Jurisdiction-Revision against order regarding payment of court
feeC
If High Court could decide orher issues-Consent of parties-Effect ofD
E
F
G
H
S. 24, scope of.
A suit for damages was filed on the allegations that the plaintiffs and
defendants were all members of an association and that the defendants
committed a tort against the plaintiffs by conspiring and preventing the
plaintiffs from being elected to the office of trustees of the association.
One of the defendants tendered an unconditional apology which was accepted by the plaintiffs and a decree was passed in terms of the compromise.
The other defend~nts, thereafter, filed written· statements contending that the release of one of the defendants from his joint liability
as a tort-feasor extinguished the plaintiff's rights against the remaining
defendants and raised questions regarding valuation and court-fees. The
trial court took up the issue regarding court-fees, held there was a defi ...
ciency and granted time to the plaintiffs to make good the deficiency.
The plaintiffs, instead, applied for amendment of the plaint and the trial
court allowed the application.
The High Court, in revision filed by the
defendants gave appropriate directions regarding payment of court-fee.
The High Court. also decided, with the consent of both sides, that the
decree against one of the defendants namely, the compromise decree, was
complete accord and satislfaction and that the cause of action against all
the defendants being one and indivisible, the decree operated as a bar
against further proceedings against the remaining defendants.
In appeal to this Court, it was
contended that
the subject matter
of revision before the High Court being only the order of the trial court
regarding court-fee, the High Court had no jurisdiction to decide any
other point.
HELD : (I) The High .Court had no power to decide any other issue
even if the parties had consented.
The order of the High Court could
not be justified under s. 24, Civil Procedure Code,
because, it was not
a case of the High Court withdrawing the case to itself and trying the
same. [963 D-E]
(2) The High Court having decided the question of maintainability
of the suit against the, other defendants, the trial court would feel handicapped if the matter were to be remitted to it.
The appropriate procedure is for this Court to decide the question. [963 E--FJ
(3) The rule which is in consonance with equity, justice and good
conscience and which also recognises that the liability of tort-feasors is
joint and several, is that, before the other joint tort-feasors can rely on
accord and satisfaction, a plaintiff must have received full satisfaction or
L6Sup.CJ/69-IO
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960
SUPR1!ME COURT REPORTS
[1969] 2 S.C.R
what the law must consider as such from one of the tort-feasors. What
A
is full satisfaction would depend on the facts and circumstances of each
case. [970 C--E]
In the
present case, the apology which was embodied in a decree
could not be treated as full satisfaction for the tort alleged to have been
committed by the defendant,.
But it must be treated as an election on
the part of the plaintiffs to pursue their several remedy against the defendant tendering the apology. [970 E-F]
B
Ram Kumar Singh v. Ali Husain, (1909) I.L.R. 31 All. 173, Makhanlal L<>laram v. Panchamal Sheoprasad,
A.I.R.
1934
Nag.
226; Har
Krishna Lal v. Haji Qurban Ali,
(1942) I.L.R. 17 Luck. 284 and Shiva
Sagar Lal v. Mata Din A.I.R. 1949 All. 105; and English and American
Law, referred to.

## Text

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KUSHRO S. GANDHI & ORS.
v.
N. A. GAJDAR & ORS .
. November 27, 1968
[S. M. SIKRI AND R. S. BACHAWAT, JJ.]
95i
Tort-Suit against several
tort-feasors for conspiracy-Unconditional
apology by one-Accepted by plaintiff and decree passed-If operate1 as
release of other joint tort-feasors.
Code of Civil Procedure
(5 of 1908).
SJ. 24 and 115-Revisiona/
Jurisdiction-Revision against order regarding payment of court
feeC
If High Court could decide orher issues-Consent of parties-Effect ofD
E
F
G
H
S. 24, scope of.
A suit for damages was filed on the allegations that the plaintiffs and
defendants were all members of an association and that the defendants
committed a tort against the plaintiffs by conspiring and preventing the
plaintiffs from being elected to the office of trustees of the association.
One of the defendants tendered an unconditional apology which was accepted by the plaintiffs and a decree was passed in terms of the compromise.
The other defend~nts, thereafter, filed written· statements contending that the release of one of the defendants from his joint liability
as a tort-feasor extinguished the plaintiff's rights against the remaining
defendants and raised questions regarding valuation and court-fees. The
trial court took up the issue regarding court-fees, held there was a defi ...
ciency and granted time to the plaintiffs to make good the deficiency.
The plaintiffs, instead, applied for amendment of the plaint and the trial
court allowed the application.
The High Court, in revision filed by the
defendants gave appropriate directions regarding payment of court-fee.
The High Court. also decided, with the consent of both sides, that the
decree against one of the defendants namely, the compromise decree, was
complete accord and satislfaction and that the cause of action against all
the defendants being one and indivisible, the decree operated as a bar
against further proceedings against the remaining defendants.
In appeal to this Court, it was
contended that
the subject matter
of revision before the High Court being only the order of the trial court
regarding court-fee, the High Court had no jurisdiction to decide any
other point.
HELD : (I) The High .Court had no power to decide any other issue
even if the parties had consented.
The order of the High Court could
not be justified under s. 24, Civil Procedure Code,
because, it was not
a case of the High Court withdrawing the case to itself and trying the
same. [963 D-E]
(2) The High Court having decided the question of maintainability
of the suit against the, other defendants, the trial court would feel handicapped if the matter were to be remitted to it.
The appropriate procedure is for this Court to decide the question. [963 E--FJ
(3) The rule which is in consonance with equity, justice and good
conscience and which also recognises that the liability of tort-feasors is
joint and several, is that, before the other joint tort-feasors can rely on
accord and satisfaction, a plaintiff must have received full satisfaction or
L6Sup.CJ/69-IO
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960
SUPR1!ME COURT REPORTS
[1969] 2 S.C.R
what the law must consider as such from one of the tort-feasors. What
A
is full satisfaction would depend on the facts and circumstances of each
case. [970 C--E]
In the
present case, the apology which was embodied in a decree
could not be treated as full satisfaction for the tort alleged to have been
committed by the defendant,.
But it must be treated as an election on
the part of the plaintiffs to pursue their several remedy against the defendant tendering the apology. [970 E-F]
B
Ram Kumar Singh v. Ali Husain, (1909) I.L.R. 31 All. 173, Makhanlal L<>laram v. Panchamal Sheoprasad,
A.I.R.
1934
Nag.
226; Har
Krishna Lal v. Haji Qurban Ali,
(1942) I.L.R. 17 Luck. 284 and Shiva
Sagar Lal v. Mata Din A.I.R. 1949 All. 105; and English and American
Law, referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 632 oi.
C
1962.
Appeal by special leave from the judgment and order dated
January 5, 1960 of the Allahabad High Court in Civil Revision
No. 325 of 1957.
G. N. Kunzru, B. C. Misra, P. K. Chakravarti and Om PraD
•
kash, for the appellants.
•
J.P. Goyal and S. P. Singh, for the respondents.
The Judgment of the Court was delivered by
Sikri, J.
This appeal by special leave is directed against the
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judgment of the Allahabad High Court (Dhavan, J.) allowing
the revision under s. 115, C.P.C., and dismissing the suit brought
by the appellants-hereinafter referred to as the plaintiffs.
The relevant facts for the purpose of appreciating the points
raised before us are as follows : The four plaintiffs, out of which
three are appellants before us the fourth having died, brought a
suit for damages against the six defendants (one defendant had
in the mell(ntime died and four are respondents before us).
The
allegations in the plaint, in brief, were that the plaintiffs and the
defendants were members of an association called Parsi Zoroastrian Anjuman; that the defendants, alaingwith some other members of the association, formed a group and each of them conspired among themselves to injure and harass the plaintiffs and a
few others in various ways; that at a meeting held on May 5, 1954,
iin connection with the election of Trustees, when defendant N. A.
Guzder occupied the chair, he gave a ruling that the plaintiffs
Kershasp S. Gandhi and B. T. J. Shapoorji, since deceased, were
unfit candidates for the office of Trustees and thus prevented them
from seeking election, and contrary to the rules of the Anjuma~
and without taking votes declared the defendant, F. J. Gandhi,
and one A. F. Cama duly elected.
It was further alleged that on
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K. S. GANDHI V. N. A. GAJDAR (Sikri, J.)
961
July 3, 1954, another meeting of the Anjuman was held when
the plaintiffs Khushro S. Gandhi and Framroze S. Gandhi were
candidates for election to the office of the trustees, and defendant
F. J. Gandhi gave a perverse ruling rejecting the nominations of
the above plaintiffs and after ta.king votes declared G. T. Shap·
poorjee as duly elected trustee; that by the aforesaid rejections the
plaintiffs had suffered an injury for which defendants Nos. 1 to 6
were jointly and severally liable and the plaintiffs were entitled
to recover damages from the defendants.
The plaint was filed on January 21, 1955. Before any written
statement was submitted, oo February 13, 1955, the sixth deien·
dant S. Rabadi, entered into a compromise with the plaintiffs.
The terms of the compromise were :
"l. I, Shavak Dorabjee Rabadi, defendant No. 6
have considered the subject matter of the suit and am
sincerely sorry and apologise to the plaintiffs unconditionally for whatever I have done. I realise that I was
in error and was misguided.
2. The plaintiffs above named accept the apology
tendered by Shri Shavak Dorabjee Rabadi defendant
No. 6 and the suit against him may be disposed of
treating the aforesaid apology and its acceptance by the
plaintiffs as a settlement of the dispute between the
plaintiffs and the defendruit No. 6.
3. The plaintiffs do not claim any costs against the
defendant No. 6 and defendant No. 6 will bear his own
costs.
It is therefore prayed that the claim against defendant No. 6 may be disposed of in terms oi the above
settlement."
A decree was passed in terms of this compromise against defendant No. 6.
On May 14, 1955, the other defe,ndants filed a written statement and inter alia ·alleged :
"That t~~ release of defendant No. 6 Sri S. Rabadi,
~n allegi;ct 101nt tort feasor and the compromise entered
mto behmd the back of the answering dc!endants with
him in full settlement of their suit for damages appears
to be. collusive and dishonest and the releas~ by the
plamtiffs of defendant No .. 6 .f:om his joint liability as
a tort feasor has m law extmgwshed the plaintiffs' rights
to sue the others remaining defendants and claim damage
from them."
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SUPREME COURT REPORTS
[1969] 2 S.C.R.
It was further alleged that "the four plaintiffs could not be legally
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allowed to totalise the sum of their individual damage, alleged to
have been suffered, and thereby procure the trial of the suit in the
court of higher jurisdiction," and that the suit had been purposely
over valued.
In a statement dated March 17, 1956, the plaiintiffs clarified
that the "damages are being claimed by the plaintiffs in respect of
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all the facts mentioned in the plaint and particularly as a result
of the facts that have been mentioned in paragraphs 17 and 19
of the plaint", and further "that on account of all the facts complained of each plaintiff is entitled to claim Rs. 10,100 as damages
but the plaintiffs have claimed only Rs. 10, 100 and have given up
rest of the claim."
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Two of the issues framed by the Civil Judge, may be set
out:
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"Issue No. 5. What is effect of the compromise between plaintiffs and defendant No. 6, as against rights
of the other defendants ? Is the suit inPt maintainable against other defendants ?
Issue No. 11. ls the court-fee paid by the plaintiffs
insufficient ?"
By order dated September 18, 1956, the Civil Judge held that
the court-fee paid by the plaintiffs was insufficient and that there
was a deficiency of Rs. 905/12/- in the court-fee which the plaintiffs had to make good.
The plaintiffs were givoo 15 days time
to make good the deficiency.
Instead of paying the money the
plaintiffs applied under O.VI, r. 17, C.P.C., for amendment of the
plaint.
The plaintiffs stated in this application that they would
in consideration of the order of the Court split the amolljllt of
Rs. 10,100/- into two portions claiming Rs. 5,050/- each in respect of the two separate incidents dated July 3, 1955, and May 5,
· 1955, respectively.
The defendants filed an application contendijng that as the plaintiffs had failed to make good the deficiency
in the court-fee within the time given, the plaint should be rejected
·in view of the provisions of the 0. VII, r. 11, C.P.C. ands. 6, U.P.
Court Fees Act.
By order dated November 28, 1956, the Civil
Judge allowed the plaintiffs' application for amendment on payment of Rs. 30/- as costq, and also rejected the defendants' applicatioo.
Against this order the defendants filed a revision.
Dhavan, J., first dealt with the point whether the plaintiffs
could renounce a part of the claim instead of making good the
deficiency in court-fee.
He came to the conclusion that the suit
contained four causes of action, and that the plaintiffs had to pay
court-fee on four separate causes of action of the value of
Rs. 2,525/- each.
As the learned counsel for the plaintiffs had
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K, S. GANDHI V. N, A. GAJDAR (Sikri, J.)
963
given an undertaking to make good any deficiency in court-fee,
Dhavan, J., directed the plaintiffs to pay court-fee on the four
separate causes of action valued at Rs. 2525 /- each.
He also
directed an amendment to be made in the plaint.
The learned Judge folt that it would be in the interest of justice
that the question covered by jssue No. 5 being one of law should
be decided by him in the revision.
It appears that the counsel
for both parties conceded that the Court had power to decide the
issue as the entire record was there, although the learned cou:c:el
for the plaintiffs felt that the decision should be left to the Trial
Court.
The ]earned counsel for the appellants contends before us that
the High Court had no jurisdiction to decide issue No. 5 in a
revision.
He says that the subject-matter of the revision was the
order of the Civil Judge dated November 28, 1956, and the High
Court could not decide any other point and convert itself into an
original court.
The learned counsel for the respondents tried to
justify the decision regarding jurisdiction of the High Court under
s. 24, C.P.C.
This section inter alia, provides that the High
Court may withdraw any suit, appeal or other proceedjng pending
in any Court subordinate to it and try and dispose of the same.
We are unable to appreciate how the order of the learned Judge
can be justified under s. 24. He has not purported to withdraw
any suit and try the same. What he has done is to try an issue
arising \ti a suit in a revision arising out of an interlocutory order.
It seems to us that the High Court, even if the parties conceded,
had no power to decide the issue. But if we set aside the order
of the High Court and remit the case to the Civil Judge to try it
according to law, the Civil Judge would feel handicapped in
deciding the case properly because he will feel bound to follow
the opinion given by the learned Judge on issue No. 5.
Under
the circumsti1nces we heard arguments on the issue.
Dhavan J., following the English Common Law, held that the
decree against Rabadi was complete accord and satisfaction aind
the cause of action against all the defendants being one and
indivisible, the decree operated as a bar against further proceed··
ings against the remaining joi~t wrong-doers.
Winfield on Tort (8th edn.) p. 661 states the English Law
thus:
"The liability of joint tort feasors is joint and several, each may be sued alone, or jointly with some or all
the others in one action; each is liable for the whole
damage, and judgment obtained
against all of them
jointly may be executed in full against any one of them.
At common law, final judgment obtained against one
964
SUPREME COURT REPORTS
[1969) 2 S.C.R
joint tort-feasor released all the others, even though it
was wholly unsatisfied. This was established in Brinsmead v. Harrison(') and the reason put by Blackburn
J., was Interest reipublicae
ut sit finis litium.
Kelly
C. B. urged that if the rule were otherwise, then in a
second action the second jury might assess an amount
different from that in the first action and the plaintiff
would not know for which sum he should levy execution.
The rule was abolished by the Law Reform · (Married
Women and Tortfeasors) Act, 1935.
It has l~ng been settled that the release of one joint
tortfeasor releases all the others, because the cause of
action is one and indivisible.
This rule has not been
affected by the Act of 1935. It applies to a release
under seal and to a release by way of accord and satisfaction, and probably to nothing else.
A mere covenant or agreement not to sue, as distinguished from an
actual release, does not destroy the cause of action, but
merely prevents it from being enforced against the particular tortfeasor with whom it is made."
That was not the law in England in the beginniifig. The history
of the law on this point is set out in William's 'Joint Torts and
Contributory Negligence' ( p. 35 footnote) as follows :
"In Y.B. (1305) 33-35 E. l, R.S. 7, it was apparently held that in trespass against four, a verdict against
two did not of itself prevent continuance against the
other two.
The verdict may not, however, have been
embodied in a judgment. The former rule appears more
clearly from Y.B. (1342) 16 E. 3, 1 R.S. 171, where
judgment against one did not bar the action against the
others.
That the parties were joint tortfeasors appears
plainly from the note from the record, ibid, 17 5 n. 7.
See also Y.BB, (1370) P. 44 E. 3. 7b, pl. 4; (1412/
13) H. 14 H. 4. 22b, pl. 27; in the latter it is said that in
trespass against two, if one be condemned and the plaintiff has execution against him with satisfaction, he shall
be barred against the others-thus implying that the
mere judgmeint would not bar. Cp. Hickman v. Machin
(1605) 1 Ro. Ab. 896 (F) 4, 7, from which case,
however (sub. nom. Hickman v. Payns), a different
inference is drawn in Broome v. Wooton (1605) Yelv.
67, 80 E.R. 4 7. The first discussion of the question in
the Year Books is in Y.B. (1441) M. 20 H. 6, lla, pl.
24, where X had first sued A, B, and C in trespass and
(I) (1871-72) L.R. 7 C.P. 547.
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K. S, GANDHI V. N, A, GAJDAR (Sikri, J.)
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obtail!led judgment against A, who alone appeared to
the writ; later X, not having levied execution under this
judgment, sued B.
Paston and Fulthorpe
expressed
opinions that he was not barred by the first judgment,
but Newton C.J. thought that he was. In Y.B. ( 1495)M .
11 H. 7. 5b, pl. 23 (Bro. Trespas 428) it was said that
one can release one joint tortfeasor after judgment
against another without affecting that other;
such a
release would have been unnecessary if the judgment
had discharged all other joint tortfeasors. Cp. Y. BB .
(1474) T. 14 E. 4. 6a, pl. 2; (1475) T. 15 E. 4. 26b,
pl. 3.
The rule was not settled in 1584, for it was
then made a question whether even satisfaction following on judgment would discharge the others (above 9
n. 2); and see Cocke v. Jennor (n.d.) Hob. 66, 80
E.R. 214, where it was said that if joint tortfeasors be
sued in several actions, satisfaction by one would discharge the others; it was illOt said that judgment against
one would discharge."
The common law rule was first established by the case of Broome
(Brown) v. Wooton(') and the only reason givein was that transit
in rem iudicatam.
In Goldrel Foucard & Sons v. Sinclair and Russian Chamber
of Commerce in London(2 ) Sargant, J. regarded the rule in Brinsmead v. Harrison(8 ) highly technical.
The rule was changed in En~land by legislation vide The Law
Reform (Married Women and Tortfeasors) Act, Pt. II (25 & 26
Geo. 5, c. 30). Section 6(1)(a) and (b) of that Act read as
follows:
"Where damage is suffered by any person as a result
of a tort (whether a crime or not)-
(a) judgment recovered against any tortfeasor liable
in respect of that damage shall not be a bar to
an action against any other person who would,
if sued, have been liable as a joint tortfeasor in
respect of the same damage;
(b) if more than one action is brought in respect of
that damage by or on behalf of the person by
whom it was suffered, or for the benefit of the
estate, or of the wife, husband, parent or child
of that person, against tortfeasors liable in respect of the damage (whether as joint tortfeasors
or otherwise) the sums recoverable under the
(I) 80 E.R. 47.
(2) [1918] K. B. 180, 192.
(3) (1871-72) L.R. 7 C.P. 547.
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SUPREME COURT REPORTS
. [ l 969] 2 S.C.R.
judgments given in those actions by way of damages shall not in the aggregate exceed the amount
of the damages awarded by the judgm1:mt first
given; and in any of those actions, other than
that in which judgment is first given, the plaintiff
shall not be entitled to costs unless the court is
o.f opinion that there was reasonable ground for
bringing the action."
This provision has bl~en adopted in
other parts
of the
Commonwealth.
Recently in Egger v. Viscount Chelmsford(') Lord Denning
M.R., observed:
"I ca,nnot help thinking that the root of all the
trouble is the tacit assumption that if one of the persons
concerned in a joint publication is a tortfeasor, then
all are joint tortfeasors. They must therefore stand or
fall together. So much so that the defence of one is the
defence of all; and the malice of one is the malice of
all.
I thiirik this assumption rests on a fallacy.
In
point of law, no tortfeasors cart truly be described solely
as joint tortfeasors. They are always several tortfeasors
as well.
In any joint tort, the party injured has his
choice of whom to sue. He can sue all of them together or any one or more of them separately. This has
been the law for centuries. It is well stated in Serjeant
Williams' celebrated notes to Saunders' Report (1845
ed.) of Cabe// v. Vaughan [(1669) 1 Saund. 291 f-g.].
'Lf several persons jointly commit a tort, the plaintiff has
his election to sue all or any number of the
parties;
because a tort is in its nature the separate act of each
individual'.
Therein lies the gist of the matter.
Even
in a joint tort, the tort is the separate act of each individual.
Each is severally answerable for it; and, being
severally answerable, each is severally entitled to his
own defence. If he is himself innocent of malice, he is
entitled to the benefit of it.
He is not to be dragged
down with the guilty. No Qlle is by our English law to
be pronounced a wrongdoer, or be made liable to be
made to pay damages for a wrong, unless he himself has
done wrong; or his agent or servant has done wrong
and he is vicariously responsible for it. Save in the case
where·the principle respondeat superior applies, the law
does not impute wrongdoing to a man who is in fact
innocent."
(!) [1965] I Q.B.D. 248, 264.
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967
A
Gatley on 'Libel and Slander' (Sixth Edition), in a footnote
at p. 367, remarks regarding the approach of Lord Deinning in
Egger v. Chelmsford(') :
"His approach is also not easy to reconcile with the
law on the release of joint tortfeasors".
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In the United States of America, in an early decision, Lovejoy
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v. Murray( 2 ), the United States Supreme Court refused to follow
the English Common Law. Miller J., speaking on behalf of the
Court,
observed,
after referring to
Broome
(Brown)
v.
Wooten(') and other cases :
"The rule in that case has been defended on two
grounds, and on one or both of these it must be sustained, if at all.
The first of these is, that the uncertain
claim for damages before judgment has, by the principle
of transit in rem judicatam, become merged into a
judgment which is of a higher nature. This principle,
however, can only .be applicable to parties to the judgment; for as to the other parties who may be liable, it
is not true that plaintiff has acquired a security of ainY
higher nature than he had before.
Nor has he, as to
them, been in anywise be.riefited or advanced towards
procuring satisfaction for his damages, by such jL•dgment.
This is now generally admitted to be the true rule
on this subject, in cases of persons jointly and severally
liable on contracts; and no reason is perceived why
joint trespassers should be placed in a better condition.
As remarked by Lord E\.lenborough, in Drake
v.
Mitchell, 3 East, 258, 'A judgment recovered in any
form of action, is still but a security for the original
cause of actioin, until it be made productive in satisfaction to the party; and, therefore, till then, it can not
operate to change any other collateral concurrent remedy
which the party may have.'
The second ground on which the rule is defended is,
that by the judgment against one joiint trespasser, the
title of the property concerned is vested in the defendant in that action, and therefore no suit can afterwards
be maintained by the former owner for the val_ue of that
property, or for a:ny injury done to it.
This principle can have no application to trespassers
against the person, nor to injuries to property, real or
personal, unaccompanied by conversion or change of
(!) [1965] I Q.B.D.248,
(2) 1e L. ed. !29, 132--133. 134.
(l) 80 E.R. 47,
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SUPREME COURT REPORTS
[1969] 2 S.C R.
possession.
Nor is the principle admitted iiri regard to
conversions of personal property.
Pribr to Brown v.
Wootton, Cro. Jae. 73, the English doctrine seems to
have been the other way, as shown by Kent, in his
Commentaries, 2 Kent, Com. 388, referring to Shepherd's Touchstone, Title, Gift; and to Jenkins, p. 109,
case 88.
We have already stated the only two principles upon
which it rests. We apprehend that no sound jurist would
attempt, at this day, to defend it solely on the ground of
transit in rem judicatam. For while this principle, as
that other rule, that no man sha!I be twice vexed for the
same cause of action, may well be applied in the case
of a second suit against the same trespasser, we do not
perceive its force when applied to a suit brought for the
first time against another trespasser in the same matter.
But in all such cases, what has the defendant in such
second suit done to discharge .himself from the obligation which the. law imposes upon him, to make compeP.sation ? His liability must remain, in morals aind on
principle, until he does this. The judgm~nt against his
co-trespasser does not affect him so as to release him
on any equitable consideration.
It may be said that
neither does the satisfaction by his co-trespasser, or a
release to his
co-trespasser do this; and that is true.
But when the plaintiff has accepted satisfaction in full
for the injury done him, from whatever source it may
come, he is so far affected in equity and good conscience,
that the law will not permit him to recover a~ain for the
same damages.
But it is not easy to see how he .is so
affected, until he has received full satisfaction, or that
which the law must consider as such.
We are, therefore, of opinion that nothing short of
satisfaction, or its equivalent, can make good a plea of
former judgment in trespass, offered as a bar in an
action against
another joint trespasser, who was not
party to the first judgment."
In India the English Law has been generally followed.
The
learned coulliSel for the appellant relies on Ram Kumar Sin~h v.
Ali Husain(').
The facts in that case in brief were as follows.
The plaintiff sued several defendants jointly to r~cover daJ?lages
(Rs. 325/-) in respect of an alleged assault committed on htm by
(1) (1909) l.L.R. 31All.173, 17$,
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K. S. GANDHI v. N. A. GAJDAR (Sikri, /.)
969
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the defendants but entered into a compromise with one defendant
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and accepted Rs. 25 /- representing his proportionate share of
damages.
The High Court held :
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"The fact that one of several tortfeasors in the progress of a suit admits his liability as well as that of t~e
other defendants and agrees to pay a sum of money m
satisfaction of his liability does not exonerate the other
defendants, who may be fo~nd responsible for the acts
complained of, from liability. In the case of Brinsmead
v. Harrison('), one of the tort feasors was sued for
damages for !rover of a piano and damages were recovered as against him.
In that case it was held that a
suit against the other tortfeasor could not be sustained
for the same cause of action, notwithstanding the fact
that the judgment already recovered remained unsatisfied.
That is a very different case from the case before us.
In the case before us all the tortfeasors were sued in one
and the same suit and judgment was not recovered only
against the party who had admitted his liability in the
progress of the suit and had agreed to pay a sum of
money in satisfaction of his liability."
This case was followed in Har Krishna Lal v. Haji Qurban Ali(2 ).
But in these cases the decree was not passed first against the tortfeasor admitting liability.
The learned counsel for the respondent relies on Makhanlal
Lolaram v. Panchamal Sheoprasad( 8 ). It was held in that case
that "an accord and satisfaction in favour of one joint tortfeasor
operates in favour of them all."
Vivian Bose, A.J.C., observed :
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"An accord and satisfaction in favour of one joint
tortfeasor operates in favour of them ail; 9 QB 819,
11 A & E 453 and 6 Bing (N.C.) 52, Odgers on Libel
and Slander, Edn. 6, p. 521, Ratanlal on Torts, Edn. 10,
p. 71.
The basis of these decisions is that where the
injury is one and indivisible it can give rise to but one
cause of action. Consequently if satisfaction is accepted
as. full and complete a1nd against one person it operates
with respect to the entire cause of action."
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In Shiva Sai?ar Lal v. Mata Din(4 ) the facts as stated in the
head-note, in brief, were :
"Plaintiff filed a suit to recover damages for malicious
prosecution against five defendants of whom defendant
1 was a minor. It was alleged that the other defondants
had instigated defendant 1 to make a complaint against
(1) (1871-72) L.R.7 C.P. 547.
(2) (1942) I.LR. 17 Luck. 284,
(3) A.l.R, 1934 Nag, 226, 227,
(4) A.LR, 1949 All, 105.
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970
SUPREME COURT REPORTS
[1969] 2 S.C.R.
the plaintiff. Subsequently, the plaintiff filed an application tbat there had been a settlement between him and
defendant 1 and he had consequently released him. The
application was allowed and defendant 1 was discharged."
Following Duck v. Mayeu(') it was held that the discharge of
defendant 1 amounted merely to a covenant not to sue him and
not to a release of all the joint tortfeasors. The English Courts
adopted this line of reasoning in order to softe.n the rigour of the
common law, but in the present case it cannot be said that the
compromise amounted to a covenant not to sue, as a decree was
passed.
·It seems to us, however, that the rule of common law prior to
Brown v. Wooton(2) and the rule adopted by the United States
Supreme Court is more in consonance with equity, justice and good
conscience.
In other words, the plaintiff must have received full
satisfaction or which the law must consider as such from a tortfeasor before the other joint tortfeasors can rely on accord and
satisfaction. This rule would recognise that the liability of tortfeasors is joint and several.
What is full satisfaction will depend on the facts and circumstances of the case. For example, the acceptance of Rs. 25 /- in
the case of Ram Kumar Singh v. Ali Hussain( 3 ) would not be a
case of full satisfaction.
In this case an apology was received from the defendant
Rabadi and accepted and em bodied in a decree. This cannot be
treated to be a full satisfaction for the tort alleged to have been
committed by the respondents-defendants. But this must be treated as an election on the part of the plaintiffs to pursue their several
remedy against the defendant Rabadi.
The leanned counsel for the respondents urges that if a decree
is passed against them for damages, the defendant Rabadi, who
compromised, would be liable to contribute in accordance with tbe
rule laid down in Dharni Dhar v. Chandra Shekhar(') in which
it was held that the rule in Merryweather v. Nixon(') did not
apply in India.
It is oot necessary to decide whether the Full
Bench decision of the Allahabad High Court lays down the Jaw
correctly, because even if it is assumed that this is the law in India
it would not affect the rights of the plaintiffs.
In the result the appeal is allowed, the judgment and decree
of the High Court set aside and the case remitted to the Trial
Court. He shall dispose of the suit in accordance with this judgme.nt and law.
No order as to costs.
V. P. S.
Appeal allowed.
(!) [1892] 2 Q.B.D. 511.
(3) (1909) l.L.R. 31 All. 173
(5)
(2) 80 E.R. 47,
(4) I.L.R. [1952] 1 All. 759 (F.B.).
(1799) 8 T.R. 186,
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