LAWS(P&H)-2006-5-358

MILKHA SINGH Vs. PARSHOTAM DASS

Decided On May 24, 2006
MILKHA SINGH Appellant
V/S
PARSHOTAM DASS Respondents

JUDGEMENT

(1.) THIS revision petition has been filed by the defendant- petitioner under Article 227 of the Constitution of India against the order dated 24.1.2004 (Annexure-P-1) passed by the learned Civil Judge (Junior Division), Mansa, whereby the application filed by him under Order 6 Rule 17 of the Code of Civil Procedure ('CPC' - for short) for amendment of his written statement for claiming set-off in respect of the crop sold to the plaintiff has been dismissed.

(2.) THE plaintiff-respondent filed a suit for recovery of Rs. 1,31,8000/- etc. against the defendant-petitioner on the basis of pronote. The defendant- petitioner contested the suit and he filed his written statement dated 12.8.2002 (Annexure P/2). The issues in the case were framed on 10.9.2002 and on 14.10.2002 the plaintiff concluded his evidence. The defendant despite being given as many as eight opportunities did not conclude his evidence and on 7.5.2003 he was given last opportunity to lead his evidence subject to payment of Rs. 100/- as costs. It was also ordered that in case the defendant does not conclude his evidence, his evidence would be deemed to the closed. The case was adjourned to 14.5.2003 on which date the defendant filed an application seeking amendment of the written statement in terms of Rule 6 Order 17 C.P.C. The defendants-petitioner sought amendment for raising the plea of set-off in the following terms :

(3.) LEARNED counsel appearing for the petitioner has contended that in fact a plea regarding set-off had already been made in the written statement that was filed on 12.8.2002 (Annexure P/2) which is evident from its perusal. As such, it is contended that it cannot be said that these facts were not pleaded or that without leading evidence, the defendant-petitioner has filed the application as an excuse to gain time by taking the plea of set-off. It is further contended that the relief which he has claimed as a set-off is by way of equitable set-off for which there is no period of limitation as there is a fiduciary relationship between the parties, which is also already pleaded in the written statement (Annexure P/2). Therefore, the application was not liable to he dismissed on the ground that it is barred by limitation. In support of the contention with regard to the plea of equitable set-off, learned counsel has referred to the commentary from the Code of Civil Procedure by justice C.K. Thakkar and submitted that a claim of equitable set-off may be allowed as it cannot be time barred when there is a fiduciary relationship between the parties.