S.K. Mal Lodha, J.
1. This is a plaintiff's appeal against the judgment dated March 30, 1977 of the learned District Judge, Balotra, pased in Civil Appeal No. 33 of 1977, by which the learned District Judge set aside the judgment and decree dated August 23, 1971 of the Civil Judge, Balotra and SIS the suit with a direction that if the defendant-respondents deposit Rs. 200/ within six weeks from the date of the receipt of the record by the trial court then, list of witnesses dated August 5, 1970 may be entertained and the defendants will be entitled to produce evidence in respect of the issues
2. The facts giving rise to this appeal may briefly be noticed: The plaintiff instituted a suit for Rs. 7700/- alleging that it is a registered firm carrying on business in grain in Balotra and that defendant No. 1 carries the same business of his own as well as on commission at Kota. Defendants No. 2 to 4 are its partners. The plaintiff purchased 110 bags of Jawar on September 9, 1968 and 25 bags on the same date in two separate transactions paying the cost of Rs. 8042.82 and 1925.34 respectively. The goods were to be supplied at Barmer. The 110 bags of Jawar were received by the plaintiff, but 25 bags were not received as the Collector, Kota imposed restrictions on the export of Jawar. It was removed by him after 5 or 7 days. The plaintiff goes on to say that on September 12, 1968, he sent Rs. 16,000/ to the defendant by bank Draft. In this way, a sum of Rs. 5586.42 remained Outstanding as payable to the plaintiff by the defendants. The amount was not returned and on September 18, 1968, the defendants were asked by telegram to pay Rs. 5500/- on their behalf to M/s. Mawalji Chhotalal, Kota but this was also not complied with. On September 29, 1968, the plaintiff received a telegram from the defendants intimating the despatch of the Makka Wagon, which was not ordered A reply was sent that there was no such business entered into between them. The defandants were asked to refund the amount lying in deposit and to deliver 25 bags of Jawar. Nothing came out and hence the suit for Rs. 7571.76 for the principal amount and Rs. 128. 24 for interest thereon was instituted. The suit was contested on behalf of the defendants. The case of the defendants was that on September 9,1968, there was a contract for sale of 135 pags of Jawar in local market to the plaintiff, out of which 110 bags were transported to Barmer. The remaining 25 pages were also sought to be delivered, but the plaintiff refused to accept them. According to the defendants, the bargain was an integral one and not in parts as set up in the plaint by the plaintiff. The sum of Rs. 16,000/- was admitted to have been received by the plaintiff. It was, however, pleaded that Devi Chand on behalf of M/s. Sultanmal Banshidhar and Manmal for the firm Manmal Shankarlal had agreed to purchase, through the commission agency of the defendants, two wagons of Makka and one wagon of Jawar and the goods were transmitted as per their instructions. As these persons neither paid for it nor took the goods, the same resulted in loss. On adjustment, the defendants are said to have realised Rs. 4869.64 for which a suit in the court of Civil Judge, Kota, was instituted. The stay of proceedings in the plaintiff's suit was prayed. The plaintiff filed a rejoinder reiterating the pi tint averments and repudiated the claim made by the defendents in the written statement. Six issues inclusive of the relief were framed and on July 13, 1970, an additional issue was framed. The issues, when translated into English, read as follows:
(1) Whether on 3-9-68 M/s. Sultanmal Banshidhar's representative Devi Chand and Man Mai the agent of plaintiff firm contracted to purchase under the commission agency of defendants two wagons of Makka and one wagon of Jawar?
(2) Whether the defendants suffered loss of Rs. 12381.40 on account of the refusal to accept delivery of the goods of this deal by plaintiff firm and Sultan Mai Banshidhar?
(3) In case issues No. 1 and 2 are declared in favour of the defendant, is it entitled to appropriate the sum of Rs. 7511.76 lying in deposit with the defendant on behalf of the plaintiff firm towards the loss caused?
(4) Whether the present suit is not within the jurisdiction of this Court?
(5) Whether this suit deserves to be stayed under the provisions of Section 10, CPC?
(6) What shall be the relief?
(1) Whether the defendant had sent 25 bags of Jawar against the plaintiff's deal at Barmer whose delivery was not taken by the plaintiff and so, what is its effect on the suit?
After trial the learned Judge, Balotra, by his judgment dated August 23 1971, decreed the suit for Rs. 7640 with costs in favour of the plaintiff and against the defendants No. 1, 2, 3 and 5, as the claim against defendant No. 4 has given up. The rest of the claim was dismissed. He however directed that the plaintiff will be entitled to future interest from the date of the suit till recovery at the rate of 6% per annum. An appeal was preferred by the defendentsx. The learned District Judge, Balotra, vide his judgment by dated March 30, 1977, accepted the appeal ad aforesaid. Hence this appeal by the plaintiff.
3. I have heard Mr. H.M. Parekh & Mr. Dalpatraj for the appellant and Mr. M.C. Jain for the respondents, and have also through the record of the case.
4. It was contended on behalf of the appellant that the learned District Judge has committed a serious error of law when he directed that the defendants would be entitled to produce the evidence in respect of al ha issues provided they deposit Rs. 200/ in the trial court within six weeks from the date of the receipt of the record, for, the claim put forward by the defendants was in the nature of set off for counter claim for which no court fee was paid and, therefore, no enquiry in that regard be made Mr H. C. Jain on the other hand, submitted that the claim put forward by the defendants is in the nature of adjustment, for which no court fee was payable On the basis of these premises, he supported the order of the learned District Judge,
5. I have given by most anxious and thoughtful consideration to the rival contentions of the learned Counsel for the parties.
6. The learned Civil Judge in para 13, has observed as follows:
13. The counter claim put-forward could not be examined for non payment of court fees. To the extent of set off it could have been looked into provided the defendant had cared to produce any evidence which they did not do.
It appears that the learned Civil Judge has assumed the claim put forward by the defendants as the counter claim and on that assumption he observed that it could not be examined on account of the non-payment of the court-fee by the defendants. However, in the second sentence, in para 13 the learned Civil Judge held that to the extent of set off, it could have been looked into provided the defendant had produced any evidence. According to the learnt Civil Judge, no court-fee was payable on the set off, but as the defendant did not adduce any evidence in respect of the set off, the claim to the extent of set off was decided against the defendants. The leaded Civil Judge was wrong when he opined that even without the payment of court-fee in regard to the claim of set off, it could be looked into provided the defendants had adduced evidence in support of it According to the defendants, the claim (sic) forward by them was an adjustment and it was neither a claim in the nature of set off nor counter-claim and for that, no court-fee was payable. Be that as it may, before making the directions, which the learned District Judge has made in the impugned order, it was necessary for him to have recorded the finding whether the claim put forward by the defendants was an adjustment or set off or counter claim. If the claim put forward by the defendants is that of adjustment, no court-fee was payable by the defendants the learned Judge could direct for its enquiry which forms: the Subject matter of issues No. 1, 2 and 3. If the claim put forward by the defendants is that of set off/counter claim, enquiry in that connection could only be ordered on the payment of court-fee by the defendants. So far as the additional issue is concerned, defendants were required to prove whether they had sent 25 bags of Jawar against second transaction of September 9, 1968 at Balotra, the delivery of which was not taken by the plaintiff; if that is so, what is its effect on the suit. In this regard, a further question before the District Judge was whether the trial court did not afford reasonable opportunity to the defendants to lead evidence and so he could direct to record evidence on that issue. As stated above, the learned District Judge, after setting aside the judgment and decree of the trial court, has merely ordered that if the defendants deposit Rs. 200/-in the trial court within six weeks from the date of the receipt of the record by the trial court; the list of witnesses dated August 5, 1970 may bi entertained and will be free to lead evidence in respect of the issues. It was necessary for the learned District Judge before making the direction, that he did, to have recorded findings on the questions:
(1) Whether the claim put forward by the defendants in the written statement h an adjustment or set off or counter claim and whether the court-fee is payable on it?
(2) Whether the defendants should be allowed to lead evidence in respect of issues No. 1, 2 and 3 and if so, on what condition? and
(3) Whether the defendants should be allowed to lead evidence in respect of the additional issue framed on July 13, 1970?
As the learned District Judge has not applied his mind on the aforesaid three questions, the, judgment dated March 30, 1977, cannot be sustained.
7. The result is that this appeal is allowed in part and the judgment dated March 30, 1970 of the learned District Judge, Balotra is set aside. The case is sent back to the learned District Judge, Balotra for rehearing the appeal filed by the defendants against the judgment and decree dated August 23, 1971 of the learned Civil Judge, Balotra after giving an opportunity to the parties of being heard and to decide it in accordance with law in the light of the observations made hereinabove. In the circumstances of the case, the parties shall bear their own costs of this appeal.