NARENDRA KRISHNA CHAKRABURTY Vs. ASHUTOSH BHATTACHARJI

JUDGEMENT

(1.) This appeal is by the plaintiff in a suit for accounts. The trial Court made a preliminary decree by which a commissioner was appointed to take accounts and to determine what sum. was due to the plaintiff or to the defendant according to the result of the accounts taken. The commissioner submitted a report in which he found that the plaintiff was not entitled to recover-any amount from the defendant but on the other hand the defendant was entitled to get from the plaintiff the sum of Rs. 958-4-0. The Munsif thereupon passed a decree in favour of the defendant for that sum. An appeal was taken to the. Subordinate Judge who dismissed it. It is argued before us that the commissioner for accounts was wrong in going behind the preliminary decree and in looking to other items than what that decree specified. The preliminary decree ordered the commissioner to take accounts and to determine what sum was due to defendant 1 for pay, parbani, tahari and nazar for the period of services. The commissioner found that that amount was due to the defendant also on account of out of pocket expenses. To this the defendant objects and says that the commissioner was not entitled to take those items in account. The learned Subordinate Judge has considered this matter and we accept his view that the order portion in a preliminary judgment need not specify all details and need not be exhaustive. The preliminary judgment in fact ordered an account to be taken between the parties of their mutual demands. This objection is overruled.

(2.) Another objection is taken at the end of the argument that the counterclaim set up by the defendant should not be entertained under Order 8, Rule 6, Civil P.C., as it was not for an ascertained amount. The defendant filed a written statement and claimed that he was entitled to get some money from the plaintiff and tentatively valued his claim at Rs.-200 for which he paid the necessary court-fees. This objection was not taken in any of the Courts below nor does it appear to be included in any of the grounds of appeal to this Court. We therefore propose to take the course which was adopted by Maclean, C. J., in the case of Surendra Nath Sarkar V/s. Atul Chandra Roy [1907] 34 Cal. 892 as it is too late for the plaintiff now. We agree with the expression of opinion and think that if the plaintiff could take the objection, we should have thought that such a set-off could be allowed under Order 20, Rule 19, Civil P.C. It is an equitable set-off arising out of the same transaction and is not governed by Order 8, Rule 6.

(3.) This appeal fails and is dismissed with costs.