Skip to content


Kathersa Rowther Vs. Abdul Rahim Sahib and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1942Mad580; (1942)2MLJ43
AppellantKathersa Rowther
RespondentAbdul Rahim Sahib and ors.
Cases ReferredWebster v. Armstrong
Excerpt:
- - he failed to pay the decretal amount and when the sons partitioned the estate there was due under this decree a sum of rs. 1,620. 3. the 1st defendant failed to pay the amount due to the decree-holder in o. 3,000. the 2nd defendant and mohammad abdulla failed to pay their shares of the decree obtained against the father in o. the subordinate judge held that the suit was not barred by reason of order 2, rule 2, but he upheld the contention that the assignment was the assignment of a mere right to sue and therefore the suit was bad......and both parties fill the same character as in the plaintiff's suit the defendant may present a written statement containing the particulars of the debt sought to be set-off. sub-r. (2) says that this written statement 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 both of the original claim and of the set-off. therefore the defendant who pleads a set-off is in the position of a plaintiff. moreover his written statement has to be stamped according to the value of the relief he claims.7. order 2, rule 2 (1) says that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action, but he may relinquish any portion of his claim in order to bring the suit.....
Judgment:

Alfred Henry Lionel Leach, C.J.

1. The question which arises here is whether the defendant who pleads a set-off under Order 8, Rule 6, Civil Procedure Code, is to be deemed to be a plaintiff within the meaning of Order 2, Rule 2 and consequently has to suffer the consequences of an omission. Although the point of law can be stated shortly, the facts of the case are somewhat complicated and it is necessary in order to appreciate the position to refer to them at some length-

2. Seeni Rowther, the father of the 1st and 2nd defendants, had four sons, the other two being named Mohammad Abdulla and Abdul Rahiman respectively. The father died on the 4th January, 1922, and in the following year the sons decided to partition the assets before discharging the debts due by the estate. Each of the brothers was allotted specific properties and he undertook to discharge specified debts. The terms of the partition were set out in a deed, dated 1st August, 1923. Bach brother agreed that if he did not discharge the debts for which he undertook responsibility, any brother called upon to pay could claim against the defaulting brother a charge on the properties allotted to him. In O.S. No. 522 of 1915 of the Court of the Town Munsif of Madura, a money decree was obtained against the father. He failed to pay the decretal amount and when the sons partitioned the estate there was due under this decree a sum of Rs. 2,548 which the 1st defendant undertook to pay. In O.S. No. 105 of 1914 in the Court of the Subordinate Judge of Madura a mortgage decree had been passed against the father, and on the 1st August, 1923, the amount due to the decree-holder was a sum of Rs. 36,000. Under the terms of the partition the 1st defendant was required to pay Rs. 10,795 of this sum, the 2nd defendant Rs. 10,090, Mohammad Abdulla Rs. 13,495 and Abdul Rahiman, Rs. 1,620.

3. The 1st defendant failed to pay the amount due to the decree-holder in O. S. No. 522 of 1915. The result was that the decree-holder attached property which had been allocated in the partition to the 2nd defendant. On the 12th September, 1925, the attached property was sold and the purchaser obtained possession. The value of the property was Rs. 3,000. The 2nd defendant and Mohammad Abdulla failed to pay their shares of the decree obtained against the father in O.S. No. 105 of 1914 and in order to avoid a sale of the properties which had been allotted to the 1st defendant and Abdul Rahiman, they were compelled to pay what was out-, standing. In this connection the 1st defendant had to expend Rs. 2,691-5-4.

4. In O.S. No. 26 of 1931 of the Court of the District Munsif of Palni the 1st defendant sued to recover from the 2nd defendant and Mohammad Abdulla the Rs. 2,691-5-4. The 2nd defendant pleaded that he was only responsible for Rs. 1,151-6-3 of this amount and that he was entitled to recover from the 1st defendant a sum in excess of the pecuniary jurisdiction of the Court, namely, in excess of Rs. 3,000, by reason of the default which the 1st defendant had made in paying the amount due to the decree-holder in O.S. No. 522 of 1915. By this plea of set-off he sought to defeat the 1st defendant's suit and at the same time leave himself free to bring a suit for any balance which might be due to him. The District Munsif held that the 2nd defendant was indebted to the plaintiff, the present 1st defendant, in the sum of Rs. 1151-6-3 as claimed by the 1st defendant, but that more than this sum was due by the 1st defendant to the 2nd defendant and on this basis he dismissed the suit. On appeal the learned Subordinate Judge, Dindigul, agreed with this decision, as did Abdur Rahman, J., on second appeal to this Court.

5. On the 13th November, 1935, the 2nd defendant assigned to the present appellant the balance of the amount owing to him by the 1st defendant, after giving credit for the Rs. 1,151-6-3. On the 2nd September, 1936, the appellant instituted in the Court of the Subordinate Judge of Dindigul the present suit to recover from the 1st defendant the balance of his indebtedness to the 2nd defendant. The pleas raised by way of defence included the contention that the suit was barred by reason of the provisions of Order 2, Rule 2, Civil Procedure Code and that all that the appellant had received was a mere assignment of a right to sue which meant that the suit could not be maintained. The Subordinate Judge held that the suit was not barred by reason of Order 2, Rule 2, but he upheld the contention that the assignment was the assignment of a mere right to sue and therefore the suit was bad. On appeal the District Judge of Madura disagreed with the Subordinate Judge that there had been an assignment of a mere right to sue and also disagreed with him on the question of the applicability of Order 2, Rule 2. The District Judge considered the provisions of that rule were fatal to the suit. The appellant then appealed to this Court and his appeal was heard by Abdur Rahman, J., who agreed with the District Judge that Order 2, Rule 2 was a bar. The present appeal is from the judgment of Abdur Rahman, J., under Clause 15 of the Letters Patent, the learned Judge having given the requisite certificate..

6. Order 8, Rule 6 (1) states that where in a suit for the recovery of money the defendant claims to set-off against the plaintiff's demand an ascertained sum of money legally recoverable by him from the plaintiff, not exceeding the pecuniary limits of the jurisdiction of the Court, and both parties fill the same character as in the plaintiff's suit the defendant may present a written statement containing the particulars of the debt sought to be set-off. Sub-r. (2) says that this written statement 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 both of the original claim and of the set-off. Therefore the defendant who pleads a set-off is in the position of a plaintiff. Moreover his written statement has to be stamped according to the value of the relief he claims.

7. Order 2, Rule 2 (1) says that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action, but he may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. Sub-r. (2) says that when a plaintiff omits to sue in respect of, or intentionally relinquishes any portion of his claim, he shall not afterwards sue in respect of the portion omitted or relinquished. Sub-r. (3) states that when a person is entitled to more than one relief in respect of the same cause of action, he may sue for all or any relief, but if he omits any, except with the leave of the Court, he shall not be allowed to sue later for the relief omitted. This rule makes it quite clear that a cause of action cannot be split up although reliefs may be if the Court agrees. If the plaintiff omits part of the claim which be is entitled to make in respect of the cause of action, he has for ever lost his right to the part of the claim omitted.

8. The question whether the defendant who pleads a set-off is bound by Order 2, Rule 2 was discussed by a Bench of the Calcutta High Court in Nawbut Pattak v. Mahesh Narayun Lal I.L.R.(1905) Cal. 654 and it was held that he was. The position was discussed at length by Mookerjee, J., whose judgment Abdur Rahman, J., accepted as embodying a correct statement of the law. We agree. Order 8, Rule 6 (2) requires the written statement put in by a defendant pleading a set-off to be such as to enable the Court to pronounce a final judgment both in respect of the plaintiff's claim and of the defendant's claim.

9. On behalf of the appellant, Mr. T. V. Muthukrishna Iyer says that the District Munsif who tried O.S. No. 26 of 1931 was content to proceed with the case on the lines of the 2nd defendant's written statement and therefore, his client, who stands in the shoes of the 2nd defendant, should be allowed to adopt the case which was indicated in the written statement. It is manifest that the 2nd defendant ought not to have been allowed to rest his plea of set-off on the written statement which he filed. His claim against the 1st defendant was for Rs. 3,000 and interest from 12th September, 1925, which therefore was in excess of the jurisdiction of the District Munsif's Court. There were two courses open to the 2nd defendant when the 1st defendant sued him. He could either set up his own claim by way of set-off and confine it to the sum of Rs. 3,000, the limit of the pecuniary jurisdiction of the Court, or he could file a separate suit in the Court of the Subordinate Judge and ask the Subordinate Judge to transfer the 1st defendant's suit to his Court and try the two suits together. He adopted neither course and merely stamped his written statement to the value of Rs. 1,151-6-3. The fact that the 2nd defendant succeeded in persuading the District Munsif to dispose of the 1st defendant's suit on the lines indicated by the 2nd defendant, does not mean that he is now outside Order 2, Rule 2. For the reasons given in Nawbut Pattak v. Mahesh Narayun Lal I.L.R.(1905) Cal. 654 we consider that Order 2, Rule 2 has application, and this means that the appellant cannot carry the matter further.

10. Before us, as before Abdur Rahman, J., the appellant laid great stress on the decision of Mathew, J., in Webster v. Armstrong 54 Law Journal Q.B.D. 236. That case had reference to the practice in County Courts in England in 1885 when there was no right of counter claim. The defendant could plead a set-off, but merely in bar of the suit. He could not ask for a decree in his favour for any balance that might be due. Abdur Rahman, J., considered that this case had no application and we again agree. The position is now very different in England because a defendant can bring a counter claim, and under the provisions of Order 19, Rule 3 of the Rules of the Supreme Court, the Court has power to pronounce a final judgment in the same action both on the original and on the cross claim. We are bound by the provisions of the Civil Procedure Code and our reading of Order 8, Rule 6 in conjunction with Order 2, Rule 2 is that the appellant was precluded by the course taken by the 2nd defendant in the former suit from bringing this present action. Consequently the appeal fails and will be dismissed with costs of the 1st respondent.

11. We trust that this decision will see an end to litigation in connection with the estate of Seeni Rowther. It is now over twenty years since he died and the attitude adopted by the 1st and the 2nd defendants with regard to their liability to pay their shares of the debts of the estate does not redound to their credit. The sons got possession of all the assets, but some of the creditors were kept out of their money for a long time. The present suit was instituted some six years ago and has been pressed in four Courts with the same result in each of them.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //