UNION OF INDIA UOI Vs. UMESH CHANDRA GUPTA

JUDGEMENT

(1.) This is a revision against the order of the Additional Civil Judge Varanasi dated the 13th May, I960, whereby he directed that suit No. 94 of 1957, filed by the applicant, the Union of India, be stayed under the provisions of Section 10 of the C. P. C.

(2.) The stay was granted on the ground that in a previous suit No. 20 of 1949, the opposite parties had filed a suit against the present applicants and in the written statement filed by the Union of India a plea was taken, in paragraph 22 OF the written statement, that the plaintiff had obtained a refund of octroi duty from the Municipal Board, amounting to Rs. 22,445/9/ 9, in connection with this transport contract, which is justly due to and recoverable by the Union of India and which was being unjustly withheld by the plaintiff. It was further pleaded that the plaintiff had not only failed to perform his part of the contract but was guilty of breach of trust. As this was a claim set up by the present applicant in suit No. 20 of 1949 by way of set off the Civil Judge had rightly called upon the applicant to pay the requisite Court-fee. The requisite Court- fee was not paid and, therefore, the question of a counter claim or set off was given up by the present applicants in that suit. An issue, however, was struck in that suit as to whether the plaintiff (Opposite Party) had committed any breach of contract by withholding the refund of octroi duty, if so, what is its effect? The issue was decided against the present applicants and it was observed:

(3.) The application is allowed. Costs will abide the event. Let the record of this case be sent down to the trial Court as early as possible.