(1) The Plaintiff, respondent herein, filed a suit against the defendant, petitioners herein, in the court of District Judge, Jammu for the recovery of a sum of Rs. 17,000/ on account of the price of Timber allegedly supplied by the Plaintiff to the defendant. In reply the defendant inter alia raised the plea of set off alleging that a sum of Rs. 2,37,060/ was due to him as damages from the Plaintiff and one, Nek Ram, on account of the breach of an agreement entered into by them with the Plaintiff. He expressed his inability to pay the court fee on the amount claimed by him on the ground that he was pauper. The trial court raised the following preliminary issue :

"Whether the counter claim made in the written statement is tenable and if it can J proceed in forma pauperis O. P. D."

and, by its order dated 1351974, decided this issue against the defendant. Aggrieved by this order the defendant has come up in revision to this court.

(2) O 8 R 6 C. P. C. in so far as relevant, provides :

"Where in a suit for the recovery of money the defendant claims to set off against the Plaintiffs demand any ascertains sum of money legally recoverable by him from the Plaintiff, not exceeding the pecuniary limits of the jurisdiction of the court, and both parties fill the same character as they fill in the Plaintiffs suit, the defendant may at the first hearing of the suit, but not afterwards unless permitted by the court, present a written statement containing the particulars of the debt sought to be setoff"

(3) Clearly one of the requirements of this Rule is that the defendants claims must be for an ascertained sum of which the present case does not fulfil. The claim laid by the defendant is for damages which are neither liquidated damages determined by a court of law or other competent authority. Thus the claim cannot be said to be for an ascertained sum of money. The mere fact that the defendant has placed a particular valuation on the damages would not convert the claim into one for an ascertained sum of money as contemplated by O. 8. R. 6 C. P. C.

(4) The other requirement of the Rule ; implicit in the words "from the Plaintiff" is that the debt sought to be set off must be due to the defendant from the Plaintiff separately or, in any case, it must be due to him jointly and severally from the Plaintiff and another person who is not a party to the suit but it must not be a debt which is due to him jointly from the Plaintiff and such other person. On his own averments the amount claimed by the defendant is cue to him jointly from the Plaintiff and another person, Nek Ram, who is not a party to the suit. As such the present case does not fulfil the requirements of the Rule about the nature of the debt.

(5) Yet another requirement of the Rule is that the amount claimed should not exceed the pecuniary limits of the jurisdiction of the court. Here the amount claimed by the defendant is Rs. 2, 37, 06o/ which clearly falls outside the pecuniary jurisdiction of the trial court.

(6) In these circumstances, the defendants claim was, exfacie, not entertain able and as such the trial court could easily afford to refuse to raise an issue on this point. In any case if the court chose to raise an issue, as it has actually done, the issues did not require much time or effort to determine it. The learned trial judge has written a lengthy judgment and aborted it with quotations from various authorities, none of which touches the material question that arose in this case namely, whether unliquidated damages represent an ascertained sum of money under O 8 R 6 C. P. C. Be that as it may, the conclusion arrived at by the learned judge that the claim for setoff made by the defendant is not entertainable is unquestionable though for reasons different from those given by him Accordingly his decision on the first part of the issue must be upheld. In that view it is not necessary for me to make any observation regarding the second part of the issue whether the claim should proceed in form a pauperis. The revision petition must be dismissed and I hereby do so.

(7) At this stage Mr. R. P. Sethi, appearing for the respondent submitted that the petitionerdefendant was able to drag on this litigation on a frivolous ground with the result that it could not make any progress whatsoever during the two long years since the suit was instituted and requested that defendant be burdened with exemplary costs in this petition. In my opinion there is enough force in the argument . of the learned counsel. The defendant raised a frivolous plea which he perhaps could reasonably know, could not prevail. He even pursued it upto this court with the pertinacity of a crusader and was there by able not only to delay disposal of the suit but also to vex the Plaintiff who must naturally have had to incur expense and suffer mental agony in the process. I, therefore, order that the petitioner shall pay Rs. 500/ as costs to the respondent in this petition. The parties are directed to appear in the trial court on 2341975.