GULLA Vs. PREMSUKHDAS

JUDGEMENT

(1.) THIS is the defendant's application for revision against the order of the Civil Judge, Jhunjhunu, allowing the defendant to claim Rs. 1007/- by way of equitable set off on condition that he pays court fee on the said amount and either deposits the suit amount in court or finds a surety who would be responsible for any amount that might be found due against him under any decree that might be passed in the suit. The suit was for the recovery of Rs. 1272/6/- on the basis of an agreement.

(2.) IN this revision, it has been contended by the learned counsel for the applicant that the lower court acted beyond its jurisdiction in requiring the defendant either to deposit the suit amount in court or to find a surety for any sum that might be decreed against him. It was frankly conceded that so far the order relates to the payment of court fee, the ruling in the case of Pyarchand vs. Dungarsingh (1) (1952 RLW 342.) would be a bar to the revision. It was however contended that on the question of the deposit of the suit amount or the furnishing of security for the payment of any sum that might be decreed was not hit by the said decision. It cannot be said without doubt that this application for revision is not hit by the decision in Pyarchand's case but I need not go into that question in this case as, to my mind, the application for revision fails on another ground. Mr. P. N. Dutta for the applicant argued that equitable set off could be claimed as of right and the lower court had no jurisdiction to put any terms on the raising of that plea. Mr. Dutta was however unable to produce before me any authority showing that an equitable set off can be claimed as of right. Mr. G. B. Bhargava for the opposite party on the other hand produced before me a ruling of a Division Bench of the Calcutta High Court in the case of Ramdharisingh vs. Parmanandsingh and others (2) (XXI I. C. 716. ). IN that case a suit was brought by the plaintiff for recovery of his share of a certain sum of money belonging to the estate of a deceased, of whom the plaintiff and the defendants were the reversionary heirs. The defendant claimed a set off in respect of the amount expended by him towards the Shradh of R's widow. This set off was disallowed by the lower courts but the High Court allowed it on condition that the defendants deposited in court the sum of Rs. 563/1/9 and proportionate costs in all courts and interest. This sum of Rs. 563/1/9 represented the difference between the amount claimed by the plaintiff and the amount claimed as set off on account of Shradh expenses by the defendants. This is a direct authority in support of the view taken by the learned lower court and I respectfully agree with it, as to mind, an equitable set off cannot be claimed as of right and in allowing such a claim to be raised the court is entitled to put the defendant on such terms as it thinks reasonable and proper. I do not think that the lower court has made any order beyond its jurisdiction or has committed any illegality or material irregularity in the exercise of its jurisdiction. To my mind, the application for revision cannot be sustained.