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Bansidhar Rameshwar Dass and Co. Vs. Asraf Ali Ramzan Ali - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Revision Nos. 261 and 262 of 1977
Judge
Reported in1978WLN(UC)510
AppellantBansidhar Rameshwar Dass and Co.
RespondentAsraf Ali Ramzan Ali
Cases ReferredSethispal v. Pandiyun Brick Works
Excerpt:
.....matter of the suit.;the defendant is, therefore, not required to make payment of court fees in respect of the claim set up by him by way of damages for the inferior quality of work done by the plaintiff.;revision partly allowed - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of..........that the pleas raised by the defendant in paragraphs 5, 6 and 7 of the additional fleas of his written statement amounted to set off within the meaning of order viii, rule 6, code of civil procedure & the defendant should pay court fees in respect of the amounts claimed by him in the aforesaid three paragraphs. by the second order passed by the learned district judge on the same case issue no. 14 was modified and instead of the word 'adjustment', the words 'sat off' were substituted in the issue as originally framed.2. i have heard learned counsel fir the parties and hive also looked into the pleadings of the parties. so far as the averments made in paragraphs 6 and 7 of the additional pleas of the written statement of the defendant are concerned, if is no longer in dispute between.....
Judgment:

D.P. Gupta, J.

1. These two revision applications have been filed by the defendant against two orders passed by the learned District Judge, Pali dated November 17, 1977. By the first order the learned District Judge held that the pleas raised by the defendant in paragraphs 5, 6 and 7 of the Additional Fleas of his written statement amounted to set off within the meaning of Order VIII, Rule 6, Code of Civil Procedure & the defendant should pay court fees in respect of the amounts claimed by him in the aforesaid three paragraphs. By the second order passed by the learned District Judge on the same case issue No. 14 was modified and instead of the word 'adjustment', the words 'sat off' were substituted in the issue as originally framed.

2. I have heard learned Counsel fir the parties and hive also looked into the pleadings of the parties. So far as the averments made in paragraphs 6 and 7 of the additional pleas of the written statement of the defendant are concerned, if is no longer in dispute between the learned Counsel that the pleas raised therein are by way of defence and not by way of set off. Para 6 relate to the rate at which the processing charges were payable and the plea taken by the defendant is that the rate claimed by the plaintiff in the suit was in excess of the rate agreed upon between the parties. This was clearly a plea by way of defence. Similarly in para 7 of the additional pleas, the defendant has merely negatived the plaintiff's claim for payment of interest and that also is obviously a plea by way of defence. There can, therefore, be no dispute that no court fee is chargeable in respect of the pleas raised by the defendant in paras 6 and 7 of the additional pleas of his written statement, as those pleas have been raised by way of defence in answer to the plaintiff's claim in the suit.

3. So far as the claim made by the defendant in para 5 of the additional pleas of his written statement is concerned it consists of two items, one of which relates to the price of alleged short supply of cloth. According to the defendant the processed material returned by the plaintiff to the defendant or according to his instructions was not in accordance with the measurements of the goods provided to the plaintiff for processing and a? such the defendant has claimed the price of the goods which were allegedly not returned after processing by the plaintiff. This claim regarding the price of the portion of the processed goods which was allegedly not returned by the plaintiff is in the nature of a cross claim and, in our view it should be claimed as an equitable set off The plaintiff's suit is in respect of the recovery of processing charges and if the defendant's case is that there was short supply of processed material and if he desires to recover the price thereof from the plaintiff, then the defendant should py court fee on the claim so made by him. The decision of the learned District Judge in this respect appears to be well founded.

4. The other part of the claim made by the defendant in para 5 of the additional pleas of his written statement relates to damages claimed by him for the alleged inferior quality of work done by the plaintiff. The claim for damages for below standard work or defective work is matter of adjustment and not set off. The defendant can rightly claim an adjustment of the amount of damages suffered by him on account of inferior quality of workmanship of the plaintiff, when a claim for the price of the work done is the subject matter of the suit. In Tata Iron & Steel Co. v. R.N. Gupta AIR 1963 Orissa it was held that in a suit for recovery of an amount for the supply of rice, the claim of the defendant for loss incured by him as a consequence of supply of below standard rice was in the nature of adjustment and not by way of set off as both the matters formed part of the same transaction of contract. Similarly in S Sethispal v. Pandiyun Brick Works : AIR1974Mad53 it was held that the claim of the defendant in respect of damages for defective work done by the plaintiff is only by way of defence and not a set off and there is no liability upon the defendant to pay court fees as a condition precedent to the defendant's right to prove the plea relating to such damages.

5. In the present case the claim of the plaintiff is in respect of the price of the work of processing done by him and the plea of the defendant relates to the same transaction, as the defendant has claimed damages for the inferior quality of work done by the plaintiff Thus the defendant's plea in this respect is really by way of adjustment against the suit claim and is not in the nature of a set off. The defendant is, therefore, not required to make payment of court fees in respect of the claim set up by him by way of damages for the inferior quality of work done by the plaintiff

6. Thus, the claim included in sub-para (a) of para 5 of additional pleas of the written statement of the defendant is held to be a set off and court fees is payable in respect thereof, as held by the trial court. But the claims made in sub-paras (b) & (c) of para 5 & in paras 6 and 7 of the additional pleas of the written statement are held to be in the nature of adjustment or defence in relation to the plaintiff's claim and no court fee is parable in respect thereof. The order passed by the learned District Judge is modified to the above extent.

7. The trial court is directed to delete issue No. 14 and frame proper issues separately in respect of the items claimed by the defendant in para (5) of the additional pleas of his written statement and also in respect of the pleas raised of in paras 5 (b) & (c) & 6 thereof. However, in the light of the aforesaid discussion no separate issue is required to be framed in respect of the plea taken in para 7 of the additional pleas of the written statement as the matter would be covered by issue No. 11. The other order passed by the trial court in respect of amending issue No. 14 is, therefore, set aside.

8. Both the revision applications are disposed of accordingly. In the circumstances of the case the parties are Wt to bear their own costs. The record of the trial court be returned to that court immediately.


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