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Piarey Lal and anr. Vs. Chief Inspector and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 914 of 1971
Judge
Reported inAIR1974All122
ActsCourt-fees Act, 1870 - Sections 6(6) and 6B; Code of Civil Procedure (CPC) , 1908 - Order 8, Rule 6(3)
AppellantPiarey Lal and anr.
RespondentChief Inspector and anr.
Appellant AdvocateM.P. Mehrotra, Adv.
Respondent AdvocateStanding Counsel
DispositionRevision dismissed
Excerpt:
.....set off - ad valorem court fee to be paid on amount of set off claimed. - - however, the principle laid down in order viii rule 6, civil procedure code can usefully be applied in determining the meaning and scope of set off and hence what is included in the expression 'plaint'.sub-rule (2) thereof clearly provides that the written statement containing the particulars of the debt sought to be set off shall have the same effect as a plaint in a cross-suit so as to enable the court to pronounce a final judgment in respect of both of the original claim and of the set off. it was clearly a counter claim or set-off and being a distinct claim ad valorem court-fee was payable thereon......was payable.2. three points requiring consideration are : whether the civil revision moved by the chief inspector of stamps was within time and also whether it was maintainable in view of the fact that the order regarding sufficiency of court-fee was passed by the additional munsif not on a plaint or a memorandum of appeal, but in respect of paragraph 15 of the written statement the last point for decision is whether the claim amounted to a get off or counter claim, or was by way of adjustment and no court-fee was payable in respect thereof.3. the material facts of the case are that badri prasad (since dead) had instituted the present suit against the applicants for recovery of the arrears of rent and for ejectment. the defendants denied the contract of tenancy and themselves claimed to.....
Judgment:
ORDER

D.S. Mathur, J.

1. This is a revision under Section 115, Civil P. C. by Piarey Lal and Indrapal defendants against the order dated 25-2-1971 of the Additional District Judge, Kanpur, allowing the revision under Section 6-B of the Court-fees Act and holding that the plea contained in paragraph 15 of their written statement amounted to a set-off on which ad valorem court-fee was payable.

2. Three points requiring consideration are : whether the Civil Revision moved by the Chief Inspector of Stamps was within time and also whether it was maintainable in view of the fact that the order regarding sufficiency of court-fee was passed by the Additional Munsif not on a plaint or a memorandum of appeal, but in respect of paragraph 15 of the written statement The last point for decision is whether the claim amounted to a get off or counter claim, or was by way of adjustment and no court-fee was payable in respect thereof.

3. The material facts of the case are that Badri Prasad (since dead) had instituted the present suit against the applicants for recovery of the arrears of rent and for ejectment. The defendants denied the contract of tenancy and themselves claimed to be owners of the house. They also pleaded in paragraph 15 of the written statement that the total mortgage money had not been paid to the defendants and the unpaid amount was in any case to be adjusted from the rent. This claim was made by way of adjustment and no court-fee was paid thereon. The Chief Inspector of Stamps raised an objection that the claim was by way of set off and ad valorem court-fee was payable. The Additional Munsif rejected the objection and an ordinary copy of the order was sent to the Chief Inspector of Stamps and on his request a certified copy was supplied to him. The Civil Revision under Section 6-B moved by the Chief Inspector of Stamps was within the prescribed period if counted from the date of the supply of the certified copy of the order, but was barred by limitation if the prescribed period was counted from the date of the supply of an ordinary copy.

4. Sub-section (6) of Section 6 of the Court-fees Act provides that in all cases in which the report of the officer referred to in Sub-section (3) is not accepted by the Court, a copy of the findings of the Court together with a copy of the plaint shall forthwith be sent to the Chief Inspector of Stamps. The word 'copy' has been used in the Limitation Act and invariably has reference to a certified or authenticated copy. When a copy of the order not certified as a true copy or not authenticated by the Courts is supplied to the Chief Inspector of Stamps how can he know that the copy received is a true copy of the order passed by the Court. The copy supplied may not be a true copy. There is, therefore, no reason why the same meaning be not assigned to the word 'copy' as is assigned under the Limitation Act.

5. The revision under Section 6-B of the Act could, therefore, be moved within the prescribed period counted from the date of the supply of the certified copy. The revision moved before the District Judge was thus made within time.

6. Sub-section (1) of Section 6 of the Court Fees Act is a general one and applies to all the documents filed, exhibited or recorded in any court of justice including plaint, memorandum of appeal and written statement. Sub-sections (2) and (3) of Section 6, however, refer to a plaint or a memorandum of appeal. Under Sub-section (3) an officer mentioned in Section 24-A can raise a question of deficiency in court-fee in respect of any plaint or memorandum of appeal and when the report of the officer is not accepted the Chief Inspector, of Stamps can move a revision under Section 6-B. It was contended that the expression 'plaint' could not include written statement Reliance was also placed upon Item I of Schedule I of the Court Fees Act, wherein written statement, pleading set off or counter claim, has been specifically mentioned in addition to plaint and memorandum of appeal.

7. The expressions 'plaint' and 'memorandum of appeal' have not been defined in the Court Fees Act. In Section 2(1) 'appeal' has been defined to include a cross-objection. The term 'plaint' has also not been defined in the Code of Civil Procedure, nor in the U. P. General Clauses Act. However, the principle laid down in Order VIII Rule 6, Civil Procedure Code can usefully be applied in determining the meaning and scope of set off and hence what is included in the expression 'plaint'. Sub-rule (2) thereof clearly provides that the written statement containing the particulars of the debt sought to be set off shall have the same effect as a plaint in a cross-suit so as to enable the court to pronounce a final judgment in respect of both of the original claim and of the set off. Under Sub-rule (3) the rules relating to a written statement by a defendant apply to a written statement in answer to a claim of set off. Consequently, under the Code of Civil Procedure the set off claimed in the written statement stands in the same category as a plaint in a cross suit and in so far as the set off is concerned the defendant is, in substance, the plaintiff and the plaintiff of the suit, a defendant who can file a written statement in answer to the claim of set off.

When set off stands in the category of a plaint in a cross suit, the expression 'plaint' used in Sections 6 and 6-B of the Court Fees Act shall include a written statement wherein set off has been claimed.

9. No contrary finding can be recorded on the basis of Schedule I of the Court Fees Act. The legislature could provide a different scale of fee for set off, but by placing the written statement, pleading a set-off or counter claim, along with the plaint or memorandum of appeal the legislature simply provided that the scale of fee for set off shall be the same as for the plaint.

10. When, in the eye of law, paragraph 15 of the written statement amounted to a plaint in a cross-suit, not only was court-fee payable on the set off but the Chief Inspector of Stamps could, if necessary, move a revision under Section 6-B. The revision moved by the Chief Inspector of Stamp was, therefore, maintainable.

11. The claim for the unpaid mortgage money was a distinct one, not in any manner related to or connected with the plaintiff's claim for arrears of rent. Cause of section for the two items was different. In fact, the claim of set off is distinct and unconnected with the claim put forward by the plaintiff. The claim in paragraph 15 of the written statement could not, therefore, be deemed to be by way of adjustment. It was clearly a counter claim or set-off and being a distinct claim ad valorem court-fee was payable thereon.

The Additional District Judge, has thus taken a correct view of the law and was justified in entertaining the revision under Section 6-B and allowing it on merits.

The present revision is hereby dismissed. Costs easy.


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