CHANDRA DUTT Vs. SHANTIRAM TIWARY

JUDGEMENT

(1.) The petitioner is the defendant in title ejectment suit No. 156/45 of 1963/64 of the Court of the Subordinate Judge, Deoghar. The suit was instituted by the plaintiffs for eviction from a house mentioned in the schedule attached to the plaint and for recovery of arrears of rent for the period beginning from April. 1961, to November, 1963, amounting to Rs. 800. The petitioner filed written statement in the suit traversing the plaintiffs' claim to eject him on several grounds. One of the pleas raised was that when Prabhu Ram Tiwary, father of plaintiff No. 1, died in November, 1963, the plaintiff No. 1 approached the petitioner and he save him Rs. 500, which was to be adjusted towards arrears of rent for the period from April, 1961, to November. 1962, and further a sum of Rs. 500 to be adjusted later on towards future rent He claimed to have paid in this manner a sum of Rs. 1,000 to the plaintiffs and thus nothing was due towards the rent of the house.

(2.) The defendant was required by the Court below to pay court-fee on a sum of Rs. 1,000 before he could be allowed to sustain this plea of payment. The stand of the petitioner was that the plea, which he had advanced in the written statement, was a plea of payment pure and simple towards rent of the house prior to the institution of the suit and the amount, therefore, alleged to have been paid, was not liable to be taxed for the purpose of court-fee under the Court-fees Act. The contention was however, overruled and hence the petitioner has moved this Court against the order passed by the learned Subordinate Judge

(3.) Learned Counsel has contended that the Court below is clearly in error in holding that the petitioner was liable to pay court-fee On a sum of Rs. 1,000, which he claimed to have paid to plaintiff No. 1 as the rent of the house, which was let out to the petitioner and for which he was liable to pay rent to the plaintiffs. The Court below was in error in demanding court-fee on this amount because in the opinion of the Court, the plea of the petitioner was not one of payment but one of set-off. The learned Subordinate Judge, however, has not given any reason for his view that the plea of the petitioner was one of set-off and not of payment. He has mentioned in a very general way that the alleged plea was by way of set-off of a much larger sum than the dues under the claim.