PT DEV DUTT Vs. JANTA TIMBER TRADERS

JUDGEMENT

(1.) THE plaintiff, respondent herein, filed in suit against the defendant, petitioner herein, in the court of District Judge, Jammu for the recovery of a sum of Rs. 17,000/ - on account of the price of timber allegedly supplied by the plaintiff to the defendant In reply the defendant, inter alia raised the plea of set off alleging that a sum of Rs. 2.37,060/ - was due to him as damages from the plaintiff and one, Nek Ram, on account of the breach of an agreement entered into by them with the plaintiff He expressed his inability to pay the court fee on the amount claimed by him on the ground that he was a pauper. The trial court raised the following preliminary issue: "Whether the counter claim made in the written statement is tenable and if it can proceed in forma pauper is? O. P. D." And, by its order dated 13 -5 -1074, decided this issue against the defendant. Aggrieved by this order the defendant has come up in revision to this court. 0. 8, R 6.C. P. C. in so far as relevant, provides: "Where in a suit for the recovery of money the defendant claims to set off against the plaintiffs demand any ascertained sum of money legally recoverable by him from the plaintiff, not exceeding the pecuniary limits of the jurisdiction of the court, and both parties fill the same character as they fill in the plaintiffs suit, the defendant may, at the first hearing of the suit, but not afterwards unless permitted by the court, present a written statement containing the particulars of the debt sought to be set -off".

(2.) CLEARLY one of the requirements of this Rule is that the defendants claim must be for an ascertained sum of money, which the present case does not fulfill. The claim laid by the defendant is for damages which are neither liquidated damages nor damages determined by a court of law or other competent authority. Thus the claim cannot be said to be for an ascertained sum of money. The mere fact that the defendant has placed a particular valuation on the damages would not convert the claim into one for an ascertained sum of money as contemplated by O. 8, R. 6 C. P. C.

(3.) THE other requirement of this Rule, implicit in the words "from the plaintiff" is that the debt sought to be set -off must be due to the defendant from the plaintiff separately or, in any case, it must be due to him jointly and severally from the plaintiff and another person who is not a party to the suit but it must not be a debt which is due to him jointly from the plaintiff and such other person. On his own averments the amount claimed by the defendant is due to him jointly from the plaintiff and another person. Nek Ram, who is not a party to the suit. As such the present case does not fulfill the requirement of the Rule about the nature of the debt,