P RM ATHIMUTHU NADAR Vs. KCKSUBRAMANIA NADAR

JUDGEMENT

(1.) This revision petition raises an unusual question of court-fee, one without precedent in my own experience and as regards which there is no decided case. The petitioner is the defendant in O.S. No. 2 of 1948 filed in the Sub-Court, Tuticorin, by the respondent as plaintiff to recover Rs. 20,804-9-6 on alleged advances made from time to time. This suit was filed on 6th January, 1948. The petitioner on 5 January, 1948, as plaintiff filed another suit O.S. No. 3 of 1948 against the respondent to recover Rs. 3,166 from him on dealings after adjusting Rs. 20,000 advanced by the respondent to him. This suit was numbered as O.S. No. 3 of 1948. It may be taken that both the plaints were under simultaneous preparation and it cannot be really said that one was filed in advance of the other. In O.S. No. 2 of 1948, the written statement filed by the petitioner is on the same lines as his plaint in O.S. No. 3 of 1948. The learned Subordinate Judge, however, accepted a strenuous contention made on behalf of the respondent that it was a set-off and directed the petitioner to pay ad valorem court-fee on Rs. 20,804-9-6 on his written statement in O.S. No. 2 of 1948.

(2.) The learned Subordinate Judge seems to have been very doubtful about this set-off. In one part of his order he called it " a sort of a set-off." He also observed that nowhere in the written statement in O.S. No. 2 of 1948 was there any clear allegation that there was an agreement on the part of the plaintiff to adjust the commission due to the defendant towards dealings by the latter for the benefit of the former. As I understand the written statement it admits the advances made by the respondent and at the same time alleges inter-related transactions in grain by which the respondent-plaintiff arranged for his grain to be deposited with the petitioner and sold by him on which petitioner was to be paid fixed commission. There is a clear averment in the written statement in paragraph 5 that there was an agreement that the commission due to the plaintiff should be settled and adjusted as part of the said financial dealings when they were finally settled.

(3.) I have also called for and perused the plaint in the petitioner's suit O.S. No. 3 of 1948 where there is a further averment that he had maintained a mutual, open and current account showing the advances he had taken from the respondent and also all these transactions in grain on his behalf. It is extremely difficult to hold in the circumstances that the written statement petitioner filed in O.S. No. 2 of 1948 is a set-off on which a separate court-fee is payable.