(1989)1989March 20 (SAWIDES,KOURRIS,BOYADJIS, J J ) VIOFOODSFOOD&FRUITPROCESSINGINDUSTRY LTD., Appellants-Defendants, v. VORKAS TRADING CO LTD , •Ν ρ . Respondents-Plaintiffs, NICOS VASILIOU, Respondent-Third Party. (CivilAppeal No. 7258). CivilProcedure — Thirdpartynotice— Whether thirdparty proceedings excluded by the very nature of summary proceedings envisaged by 0.65 of the Civil Procedure Rules — Question detemiined in the negative — 0.65 does not excludeanapplicationinwritingfor leave to issue a thirdparty notice — Agisilaou v. Sawa
(1987)1 C.L.R. 5 445, adopted. The principle emanating from this decision sufficiently appears from theabove headnote.Nosummary of facts need be given. Appeal allowed.No orderas to costs. Casesreferredto: 10 Agisilaou v. Sawa
(1987)1 C.L.R. 445. Appeal. Appeal by defendants against thejudgment of theDistrictCourt of Nicosia (Kallis, D.J.) dated the 31st October, 1986 (Action No. 1311/86) whereby an application for third party directions between the defendant and Nicos Vassiliou, the third party, was refused. 15 P. Kakopieros, for the appellants-defendants. M. Kyprianou, for the respondent-third party. Cur. adv. vult 172 20 1C.L.R. Viofoodsv.VeritasTrading SAWIDESJ. read the following judgment ofthe Court.Thisis anappeal from anorderofaJudgeoftheDistrictCourtofNicosia bywhich he refused an application of the appellants-defendants, inanactioninstitutedunderOrder65oftheCivilProcedureRules, 5 for third party directions between the defendants and Nicos Vasiliou, the third party, respondent in this appeal from whom they were claiming contribution and or indemnity regarding the claimoftheplaintiffs against them. The facts ofthe case are briefly as follows: 10 The appellants, hereinafter to be called «the defendants», are *hedefendants in CivilAction No. 1311/86 which was instituted against them by Vorkas Trading Co. Ltd., the plaintiffs in the action, claiming against them £575.- balance of value of goods sold and delivered. The proceedings were commenced in the 15 summary procedure provided under Order 65 of the Civil Procedure Rules. ' After serviceuponthem ofthewritofsummons,the defendants filed an ex parte application for leave to issue and serve a Third Partynotice on one NicosVasiliou,the respondent inthisappeal, 20 hereafter tobecalled«TheThirdParty»,claimingcontribution and indemnity regarding plaintiffs' claim against them. Leave was granted accordingly by the Court. Subsequently the defendants made a written application bysummons for third party directions which was served on the third party together with the third party 25 notice. The third party opposed such application on the ground that third party proceedings are not possible under Order 65 of the Civil Procedure Rules. As the issue in question did not concern plaintiffs' claim against the defendants, the plaintiffs did not 30 participate in the dispute between the defendants and the third party on thevalidityof the proceedings. Thelearned trialJudgehavingheardbothcounselaccepted the submission of counsel forthethirdpartyand ruled-thatthirdparty procedure isaltogetherforeign totheobjectandpurposeofOrder 35 65 and run quite contrary to what Order 65 aimstoachieve and dismissed the application for third party directions with the result that the third party proceedings between the defendants and the third party were ended. 173 SavvidesJ. Vlofoodsv.VorkasTrading
(1989)The question whether third party proceedings are outside the scopeof Order65hasbeen considered bythisCourtinAgisilaouv. Sawa
(1987)1C.L.R. 445.Inthat case the appeal was directed against an order of a Judge of the District Court of Limassol by which he refused the application of the appellants, defendants in 5 theaction, institutedunderOrder65oftheCivilProcedure Rules, forleavetoissueathirdpartynotice.A.Loizou,J. (ashethenwas) indeliveringtheunanimousjudgmentoftheCourthadthistosay: «In our view this rule does not exclude an application in writing for leave to issueand serve before thehearing a third 10 party notice which does not affect in essence the case between the plaintiff and the defendant but it aims at introducing in the proceedings a third party for indemnityof and contribution to the defendant. Moreover thisrule has to be read subject to the general provision contained inrule 15 15 where in its concluding part itsays that 'the Court shall have power tovarytheprocedure inanyactiontowhichthisOrder applies insuch mannerasitmaythinkfitwithaviewtosaving time and expense but so that no prejudice is caused to the partiesconcerned/ We are of the opinionthat withinthisprovision the learned trialJudgehad powertoentertaintheapplicationfortheissue of third party proceedings as no prejudice could be caused andconsiderableexpenseandtimewouldbesavedifthethird party was properly brought before him atthe hearing for the 25 final determination of allissuesraised inthe proceedings. Nopractical benefit could havebeen gainedbyanyone, to wait until the date of the hearing. After all a third party procedureaimsatbringinginonthedateofthehearingathird party against whom indemnity or contribution et cetera is 30 claimed. The whole tenor of order 65 istosimplify proceedings and tosaveexpenseandtimebutinnowaythatistobe achieved attheexpenseofthepartiesortocausedelayormultiplicityof proceedings or deprive a defendant of hisrightto indemnity 35 and contribution that he may raise inthirdparty proceedings and have the extent of the liabilityof a thirdparty decided in them aswell». 174 20 1C.L.R. Viofoodsv.VorkasTrading SavvidesJ. We agree with the above approach and we adopt for the purposes of this appeal the above dictum. Very rightly learned counsel for the respondent conceded that in the light of the aforesaid judgment he could notsupport therulingofthe learned 5 trialJudge. Intheresulttheappeal isallowedandthesubjudiceorderofthe Courtisherebysetasidewithnoorderforcostsasnonehavebeen claimedbycounsel for appellants. Appeal allowed with no orderastocosts. 10 175