Patna High Court
Chandra Dutt vs Shantiram Tiwary And Anr. on 7 October, 1966
Equivalent citations: AIR1967PAT358, AIR 1967 PATNA 358
ORDER S.C. Misra, J.
1. The petitioner is the defendant in title ejectment suit No. 156/45 of 1963/64 of the Court of the Subordinate Judge, Deoghar. The suit was instituted by the plaintiffs for eviction from a house mentioned in the schedule attached to the plaint and for recovery of arrears of rent for the period beginning from April. 1961, to November, 1963, amounting to Rs. 800. The petitioner filed written statement in the suit traversing the plaintiffs' claim to eject him on several grounds. One of the pleas raised was that when Prabhu Ram Tiwary, father of plaintiff No. 1, died in November, 1963, the plaintiff No. 1 approached the petitioner and he save him Rs. 500, which was to be adjusted towards arrears of rent for the period from April, 1961, to November. 1962, and further a sum of Rs. 500 to be adjusted later on towards future rent He claimed to have paid in this manner a sum of Rs. 1,000 to the plaintiffs and thus nothing was due towards the rent of the house.
2. The defendant was required by the Court below to pay court-fee on a sum of Rs. 1,000 before he could be allowed to sustain this plea of payment. The stand of the petitioner was that the plea, which he had advanced in the written statement, was a plea of payment pure and simple towards rent of the house prior to the institution of the suit and the amount, therefore, alleged to have been paid, was not liable to be taxed for the purpose of court-fee under the Court-fees Act. The contention was however, overruled and hence the petitioner has moved this Court against the order passed by the learned Subordinate Judge
3. Learned Counsel has contended that the Court below is clearly in error in holding that the petitioner was liable to pay court-fee On a sum of Rs. 1,000, which he claimed to have paid to plaintiff No. 1 as the rent of the house, which was let out to the petitioner and for which he was liable to pay rent to the plaintiffs. The Court below was in error in demanding court-fee on this amount because in the opinion of the Court, the plea of the petitioner was not one of payment but one of set-off. The learned Subordinate Judge, however, has not given any reason for his view that the plea of the petitioner was one of set-off and not of payment. He has mentioned in a very general way that the alleged plea was by way of set-off of a much larger sum than the dues under the claim.
4. In my opinion, the contention is well founded. Even the learned Subordinate Judge has not proceeded on the footing that if the plea urged on behalf of the petitioner were one of payment, he would be liable to pay court-fee on that amount but the plea was one of set-off. Learned Counsel has contended that so far as the written statement is concerned. It has been clearly stated by the petitioner that the amount of Rs. 1,000, which was paid by the petitioner to plaintiff No. 1, was towards the rent of the house and no sum was outstanding against the petitioner in respect of the rent of the house. If the plea of the petitioner were to be considered as such, there would be no scope for holding that it was a plea of set-off. "Set-off" has rightly been distinguished from the plea of 'payment' in several decisions, which is to the effect that where the defendant pleads adjustment or payment of certain amount to the plaintiff towards his dues prior to the date of the suit, it is adjustment or plea of payment. It is only when the defendant pleads that a certain amount, which the plaintiff owes to him or, which he is under an obligation to pay to the defendant, should be adjusted towards his dues by the Court and which he himself had hot already specified as payment to the plaintiff and communicated to him; then and then only it would be regarded as a set-off.
5. The above view has been taken in a number of decisions, as already staled, being the case of Raja Sri Shiva Prasad Singh v. Lalit Kishore Mitra, AIR 1943 Pat 152. and Konda Pentiah v. Chenchu Rangiah, AIR 1955 Hyd 176. In the latter case, it has been laid down by a Division Bench of that Court that a plea of adjustment must arise in a case where the plea is that the satisfaction took place prior to the date on which the defence wag raised in the suit. A claim for set-off, however, would arise in a case where the defendant would pray to the Court to enter satisfaction in respect of the plaintiff's dues from the outstanding dues owed by the plaintiff to the defendant. In the above mentioned Patna case, at page 159, Fazl Ali, J., also observed: "Again the question of set-off cannot arise in so far as the dues of the plaintiff are proved to have been adjusted in the past. It can arise only in regard to the dues, which are outstanding and have not been adjusted. In the case of Pramada Prasad Mukherjee v. Sagarmal Agarwalla. AIR 1954 Pat 439, also it was held that the amount which had to be decreed in favour of the defendant in a suit for rescission of a contract by the plaintiff, which the defendant advanced to the plaintiff, would not be chargeable with court-fee, because the Court would have to adjust the equity between the parties before the plaintiff's suit for rescission of contract would be decreed.
6. Some discussion took place before me as to legal set-off, equitable set-off and plea of payment, on which several decisions have been examined. On the facts of the present case, however, that question does not arise, because, the only point to determine is whether the defendant's plea was one of payment or of set-off. In view of the fact that the defendant-petitioner clearly pleaded that the amount, which he had paid to the plaintiff No. 1, was specifically towards the rent of the house, which was let out to him, and, therefore, no dues were outstanding; there can be no justification for taking the view that it was a plea of set-off The learned Subordinate Judge was clearly in error in thinking that the plea of the defendant was one of set-off, because he claimed to have paid higher amount to the plaintiff than would be the rent of the house. He has not given any indication as to how he arrived at that conclusion and in any case, in view of the clear plea on the part of the petitioner that the amount that he paid to the plaintiff left no balance on account of rent claimable by the plaintiff against him it it clearly a plea of adjustment whatever might be the amount advanced by the defendant to the plaintiff.
7. The application, therefore, must be allowed, the order passed by the learned Sub ordinate Judge set aside and it must be held that no court-fee is payable by the petitioner on the sum of Rs. 1,000, which is said to have been paid to the plaintiff towards the rent of the house. In the circumstances of the case, however, the parties will bear their own costs of this Court.