SADASHEO KRISHNARAO BUTY Vs. NATHU BALA MAHAR

JUDGEMENT

(1.) THE only question for decision now is whether a set-off in excess of Rs 50 should have been allowed. The defendant claimed Rs. 325 but only paid court-fees on Rs. 50. The lower Court has allowed him Rs. 225 and has passed a decree for that sum against the plaintiff. The learned Judge-allowed the defendant to pay court-fees on the difference after his decision. This he had no power to do. There is no difference between an equitable set-off and a legal setoff in the matter of court-fees. In both cases court-fees must be paid ad valorem on the amount claimed: Bhikoobhoy Govindji & Co. v. Central Provinces Contracting and Mining Syndicate, Nagpur A.I.R. 1936 Nag. 222 and Hargovind v. Shrikrishnadas A.I.R. 1936 Nag. 290 No claim for set-off can be decreed in excess of the amount claimed: Girdharilal v. Surajmal Payment of further court-fees after decision is not permissible: Reazai Karim v. Mohammad Israil Counsel for the non-applicant defendant relies on Ragavaji Sait v. Annamalai Mudali 17 M.L.J. 625, where a claim for damages was treated as if it were on the same footing as one for accounts and mesne "profits. With respect I consider this is wrong and prefer the Calcutta view. Section 11 is an exception to the general rule and it is restricted to claims for accounts and mesne profits. There is, in my opinion, reason for this restriction. In both these cases the facts are known to the plaintiff's opponent. He has, or ought to have, the accounts. But in other cases neither side is in any special position of advantage and so the party claiming has to pay at the outset for any sum he claims. The revision is allowed to the extent specified above. The decree for Rs. 225 will be reduced to Rs. 50. The costs of this revision will be paid by the defendant. Counsel's fee Rs. 20.

(2.) AS regards the other Rs. 275, I have already decided that that was a plea of payment or satisfaction and has been accepted as such by the lower Court. No point in respect of that arises now.