1. In defending a suit for rent, appellant alleged that the rent was not due, because respondent had failed to repair the well on the land and consequently he (appellant) had been unable to raise the garden crops for the cultivation of which the rent had been fixed. The first Court allowed an abatement of rent, but the lower Appellate Court disallowed appellant's contention because under Section 38 of the Estates Land Act he could and should have applied to the Collector for a reduction of rent.
2. Patta was accepted by defendant for Fasli 1318 and a muchilika executed; and similar pattas were tendered for Faslis 1319 to 1321 (the suit period) and were not objected to. It must be taken, therefore, that there was a contract between the parties, under which the appellant was bound to pay the rent now claimed. His plea for reduction of rent on the ground of failure of water supply is undoubtedly in the nature of an equitable set-off, for, in effect, it is a claim for damages in respect of the contract to cultivate, for into that contract appellant wishes to import another contract that the landlord was to repair the well which irrigated the land. In the language of Scotland, C.J., in Stephen Clark v. Ruthnavaloo Chetti 2 M.H.C.R. 296, 'the right of set-off will be found to exist not only in cases of mutual debts and credits, but also where the cross-demands arise out of one and the same transaction, or are so connected in their nature and circumstances as to make it inequitable that the plaintiff should recover and the defendant be driven to a cross suit.' In this case defendant's plea undoubtedly amounts to an equitable set-off and as such is barred under Section 192(e) of the Act.
3. In this view it is unnecessary to discuss the larger question of whether, apart from the question of set-off, defendant is precluded by the provisions of the Act from setting up in defence to a suit for rent, a right which he is specifically allowed by the Act to enforce by suit or otherwise.
4. The District Judge has not recorded any finding on the question whether two instalments of rent for Fasli 1319 are barred by limitation. The appeal is accordingly remanded for a finding on this point. The finding should be submitted within six weeks from this date, and seven days will be allowed for filing objections.
5. In compliance with the order contained in the above judgment, the District Judge of Tinnevelly submitted the following
6. It is directed that finding be submitted on the evidence on record on the issue whether two instalments of rent for fasli 1319 are barred by limitation. It is alleged in paragraph 10 of the plaint that the plaint was instituted by calculating all the arrears as a single arrear, consistently with the action of the plaintiff complying with the request of the defendants that they should be permitted to pay them as a whole at the end of every fasli. The agent of the plaintiff (his first witness) states that the ryots of the village had agreed to pay the rent for the whole fasli in a lump at the close of the fasli. The payment of interest for the previous instalments was not always insisted upon, although the landlord had the right to do so. He also stated that Subba-rayulu Naidu (the defendant) requested the landlord to allow him to pay the rent for the whole fasli at the end of the fasli in his presence and the landlord agreed to it for Fasli 1319. There is no evidence to the contrary. The lower Court does not believe that this request was made by the defendant because of the state of the relations between the parties. But there is no evidence that at that time the relations between the parties were strained. If the agreement to pay at the end of the fasli be believed, the arrears for two instalments, for Fasli 1319 are not barred by limitation. On the evidence I find that the agreement is proved and that the two instalments are not barred by limitation.
7. This second appeal came on for final hearing after the return of the finding of the lower Appellate Court upon the issue referred by this Court for trial on 5th April 1916.
8. We accept the finding and dismiss the second appeal with costs.