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Gour Chandra Goswami and anr. Vs. the Chairman of the Commissioner of the Nabadwip Municipality - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1922Cal1,80Ind.Cas.192
AppellantGour Chandra Goswami and anr.
RespondentThe Chairman of the Commissioner of the Nabadwip Municipality
Excerpt:
civil procedure code (act 7 of 1908), section 151, order viii - inherent powers, exercise of--court, whether can introduce new forms of procedure--counter-claims. - .....is the creation of the judicature act. order viii only provides for set off in suits for recovery of money. it is quite clear that there could be no set off in a suit like the present one. the munsif was not justified in introducing the principle of english law in the trial of a suit in this country. there would be no hardship on the defendant in requiring him to file a separate suit to obtain what he claimed as relief in his additional written statement. the usual procedure of trying two cross-suits together could be followed if the court in which these suits were pending in the exercise of its discretion thought it desirable that that should be done. the munsif was not justified in applying his powers of inherent jurisdiction to introduce a new form of procedure for which no.....
Judgment:

1. This Rule is directed against an order of the Munsif, first Court of Krishnagar, allowing the defendant, opposite party to file an additional written statement and to let it be treated as a cross-plaint. The suit between the parties is one for declaration that certain property was not liable to assessment to house tax.

2. The Code of Civil Procedure provides in Order VIII for dealing with set-off but makes no provision for counter-claims. In English Law the modern counter claim is the creation of the Judicature Act. Order VIII only provides for set off in suits for recovery of money. It is quite clear that there could be no set off in a suit like the present one. The Munsif was not justified in introducing the principle of English Law in the trial of a suit in this country. There would be no hardship on the defendant in requiring him to file a separate suit to obtain what he claimed as relief in his additional written statement. The usual procedure of trying two cross-suits together could be followed if the Court in which these suits were pending in the exercise of its discretion thought it desirable that that should be done. The Munsif was not justified in applying his powers of inherent jurisdiction to introduce a new form of procedure for which no provision is made by the law.

3. We accordingly make this Rule absolute and set aside the order of the Munsif allowing the defendant's additional written statement to be treated as cross plaint. This order will be no bar to the defendants bringing a separate suit on the same cause of action if he thinks fit to do so.

4. The petitioner is entitled to his costs of this Rule. Hearing fee one gold mohur.


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