BHARTA Vs. CHET RAM

JUDGEMENT

(1.) This is an application in revision by the defendant from a decree of the Court of Small Causes. The plaintiff's case was that he as lambardar was entitled to recover water rates from tenants but the defendant wrongfully realized some rates from some of the tenants; that when the plaintiff claimed the amount from the tenants, they pleaded payment to the defendant, in consequence of which his suit was dismissed by the Revenue Court. Accordingly the plaintiff claimed that as lambardar he is entitled to recover the amount from the defendant through the Civil Court. The defendant did not deny the fact that he had realised the sum claimed, but pleaded a set-off on account of a payment made by him on account of default in the payment of Government revenue by the plaintiff. It appears that both the plaintiff and the defendant are lambardars but it is admitted that the plaintiff alone was entitled to recover the water rates claimed in the suit, while he was liable to deposit the Government revenue which had been paid by the defendant on account of the plaintiff's default. The defendant claimed that Rs. 133-10-9 was the amount paid by him towards the revenue, but he merely asked for a set-off as against the plaintiff's claim without claiming a decree for the balance, that is to say, without any counter-claim.

(2.) The Court below held that the defendant's claim for a set-off was barred by time because, on the date when he filed the written statement, his remedy would have been barred by the law of limitation. It is admitted that his remedy would have been so barred on the date when the written statement was filed. The first point for consideration in revision is whether the Court was right in disallowing the claim for a set-off.

(3.) No doubt in England a clear distinction has been drawn between a set-off which merely amounts to an adjustment or satisfaction of the plaintiff's claim and a counter-claim under which a defendant claims a decree for the surplus amount due to him. Courts in India have adopted the same distinction and have held that in the case of a mere set-off, in the strict sense of the word, the law of limitation should be considered to be applicable on the data on which the plaintiff's claim is brought, whereas in the case of a counter-claim the law of limitation should be applicable on the date when the written statement is filed. If we examine the language of the relevant provisions of the Civil P. C., there does appear to be considerable difficulty in accepting this distinction. Order 8, Rule 6, provides that where in a suit for the recovery of money the defendant claims to set-off against the plaintiff's demand any ascertained sum of money legally recoverable by him from the plaintiff, then he may present a written statement containing the particulars thereof. Then, Sub-rule 2 provides that the written statement shall have the same effect as a plaint in a cress-suit. Sub-rule 3 says that the rules relating to a written statement by a defendant apply to a written statement in answer to a claim of set-off. We next have Order 20, Rule 19, under which, where the defendant has been allowed a set-off against the claim of the plaintiff, the decree shall state what amount is due to the plaintiff and what amount is due to the defendant, and shall be for the recovery of any sum which appears to be due to either party. Sub-rule 3 provides that the provisions of this rule shall apply whether the set-off is admissible under Rule 6 of Order 8, or otherwise.