Authored By : Loftus Richard Tottenham, Agnew

Loftus Richard Tottenham and Agnew, JJ.

1. The question laid before us for decision by theappellants pleader is, whether the defendants in this suit were entitled underSection Ill of the Civil Procedure Code to set-off against the plaintiffsclaim certain amounts in respect of which they alleged a claim against him,such amounts being, at the time when the written statement was filed,unascertained. The suit was one for contribution in respect of a decreeobtained jointly against the plaintiff and defendants, but which was liquidatedby the plaintiff alone. The decree was in respect of arrears of rent of anijara held jointly by the plaintiff and defendants. The defendants pleadedthat, although the plaintiff had paid off the whole of the decree in question,still he was not entitled to recover any portion of the decretal amount fromthem, because they had paid up to the zamindar the whole of the ijaia rents forother years, and had been out of pocket by so doing, the collections havingfallen short of the rents payable to the zamindar, and the plaintiff havingfailed to contribute his share of the sum so paid. It was also alleged that theplaintiff himself held in nij jote a portion of the ijara land, and that inrespect of such land he was liable to pay rent to the defendants. And there wasa further allegation that in the year 1286, being the last year of the ijata,the plaintiff had himself realised a portion of the rent from the ryots, buthad not paid over to the defendants their share of such rent.

2. The first Court originally decreed the suit, holding thatSection 111 did not apply to the case, and that, therefore, if the defendantshad any counter-claim, they must establish it by a separate regular suit. Thisdecision was set aside by the lower Appellate Court, and ultimately, an accountbeing gone into, the Courts below have concurred in holding that the amountclaimed by the defendants from the plaintiff is in excess of that which theplaintiff claims from the defendants; and the suit has accordingly beendismissed.

3. It appears to us quite clear that so far as Section 111of the Code of Civil Procedure is concerned, the original judgment of the firstCourt was correct in law. The counter-claim of the defendants did not fulfilany of the conditions set out in Section 111, as entitling them to plead theset-off. But the pleader for the respondent, in the course of his argument, hasshown us decisions of the High Courts of Madras and Bombay, in which it washeld that Section 111 of the Civil Procedure Code does not take away fromparties any right to set-off whether legal or equitable, Which they would havehad independently of the Code. The cases are Clark v. Ruthnavaloo Chetti 2 MH.C. 296 and Kishorchand Champalal v. Madhowji Visram I.L.R. Bom. 407. It wasobserved by the Madras High Court that "the right of set-off will be foundto exist not only in cases of material debts and credits, but also where crossdemands arise out of the same transaction, or are so connected in their natureand circumstances as to make it inequitable that the plaintiff should recoverand the defendant be driven to a cross suit." We think that we mayproperly adopt the principle followed in these two decisions, and affirm theruling of the lower Appellate Court so far as the defendants demand can besaid to arise out of the same transaction as that of the plaintiff. We think,therefore, that the decree, satisfied by the plaintiff, having been for arrearsof rent of the same ijara to which the defendants demand relates, thedefendants counter-claim in respect of the ijara rents paid by them to thezamindar without the assistance of the plaintiff should be taken into accountin determining the suit. But we think that the claim which the defendants advancedfor rent from the plaintiff as for land cultivated and held by him exclusivelywithin the ijara should not be entertained. That, we think, is a separatematter from the rents payable to the zamindar.

4. Further, the Court in which this suit was tried had nojurisdiction to entertain any claim for rent by the defendants against theplaintiff. In that part of the country in which the suit was brought, Act X of1859 is still in force, and suits for rent are tried in Revenue and not inCivil Courts. Further, it appears on the face of the record that, as regards aportion of the claim for rent, the defendants demand was barred by limitationat the time when their written statement in this suit was filed. It remains,therefore, to be decided whether the amount of rent paid to the zemindar by thedefendants without the help of the plaintiff, and for which the plaintiff wasliable jointly with themselves, amounts to such a sum as will cancel theplaintiffs claim in this suit. If the amount recoverable under this head bythe defendants is equal to, or in excess of, the plaintiffs claim againstthem, the suit will properly be dismissed. If, on the other hand, this amountis less than the plaintiffs admitted claim against the defendants, he willobtain a decree for the excess. The first Court simply says that the claim ofthe defendants under the first two heads, that is, the ijara rent and the rentpayable by the plaintiff for his nij land, together exceed the amount of theplaintiffs claim. The District Judge must now determine whether the amountclaimed by the defendants under the first head alone is sufficient to satisfythe plaintiffs claim. The case must go back to the lower Appellate Court forthat purpose.

5. The costs of this appeal will be apportioned inproportion to the ultimate result.

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Bhagbat Panda vs. Bamdeb Panda and Ors. (12.05.1885 - CALHC)