AJITBHAI B MISTRY Vs. BOMI K DANGORA

JUDGEMENT

(1.) The Original Plaintiff of Civil Suit No. 1115 of 1975 decided by the 3rd Joint Civil Judge (J. D.) at Surat on 30/09/1977 has preferred this Second Appeal against the judgment and the decree passed by the learned Extra Assistant Judge of Surat on 16/11/1977 in Regular Civil Appeal No. 308 of 1977. Thereby the learned Appellate. Judge was pleased to accept the appeal and to set aside the judgment and the decree passed by the trial Court on 30/09/1977 in Regular Civil Suit No. 1115 of 1975 decreeing the plaintiff's suit for the principal amount. The learned Appellate Judge also dismissed the present Appellant's cross-objections in the present respondent's appeal to the extent the claim for interest was not allowed by the trial Court.

(2.) The facts giving rise to the present appeal may be summarised thus. The present appellant filed one suit for a decree in the sum of Rs. 8,000/- against the present respondent with interest at the rate of 6 per cent per annum. According to the plaintiff he made some articles of furniture for the present respondent and he claimed Rs. 6,847.50 ps. towards the labour charges and the price of materials used by him in making those articles of furniture. He claimed Rs. 1,153-00 by way of interest on that amount. That suit was filed in the Court of the Civil Judge (S,D.) at Surat. It was registered as Regular Civil Suit No. 1115 of 1975, The present respondent filed his written statement and resisted the suit on various grounds. He inter alia contended that he did supervision work for the present appellant with respect to interior designing work in one Neelam Hotel and at some other place and it was understood between both of them that the present appellant should adjust that amount by preparing articles of furniture for the present respondent's house. The suit appears to have been assigned to the learned 3rd Joint Civil Judge (J.D.) at Surat. The learned trial Judge raised the necessary issues on the pleadings of the parties. After recording evidence and hearing the parties, by his judgment and decree passed on 30/09/1977 in Regular Civil Suit No. 1115 of 1975, the learned trial Judge decreed the present appellant's suit to the extent of the principal amount in the sum of Rs. 6,847.50 ps. That aggrieved the present respondent. He therefore carried the matter in appeal before the District Judge of Surat. His appeal came to be registered as Regular Civil Appeal No. 308 of 1977. The present appellant filed his cross-objections in appeal to the extent his claim for interest on the principal amount was not accepted by the learned trial Judge. That appeal appears to have been assigned to the learned Extra Assistant Judge of Surat. By his judgment and decree passed on 28/06/1979 in Regular Civil Appeal No. 308 of 1977, the learned Appellate Judge was pleased to accept the appeal and to set aside the judgment and the decree passed by the trial Court. In the process, the learned Appellate Judge also dismissed the cross-objections filed by the present appellant in the appeal. That aggrieved the present appellant. He has therefore preferred this Second Appeal questioning the correctness of the judgment and the decree passed by the learned Extra Assistant Judge of Surat on 28/06/1979 in Regular Civil Appeal No. 308 of 1977.

(3.) Shri Desai for the appellant has submitted that the learned trial Judge ought to have considered the plea of the defendant as a set off and not an adjustment. In that view of the matter, runs the submission of Shri Desai for the appellant, the learned Appellate Court ought not to have entertained the present respondent's plea of set off in absence of payment of the required court-fees thereon. As against this, Shri Mankad for the respondent has folly supported the judgment and the decree passed by the lower Appellate Court under challenge in this appeal.