(1) THE petitioner was a railway guard in the employment of N. F. Railways and he brought the suit out of which this Rule arises for recovery of a sum of Rs. 2830. 09 paise claimed as arrears of salary and other dues from the defendant-opposite party. In the written statement the defendant Union of India stated, inter alia, that from 1st of August 1962 to 1st of January 1967, the Plaintiff

"illegally and surreptitiously" continued to occupy some Railway quarters at Alipurduar junction, that a sum of rs. 3849. 49 p. was due to the defendant from the plaintiff for such illegal occupation of the quarters and that the plaintiffs "entire claim was found to be lawfully adjustable against the house-rents for his illegal and unauthorised occupation of the Railway quarters. . . . . . . . . . "

On the statements as aforesaid the defendant claimed to set off against the plaintiffs demand the amount "still lying outstanding against the plaintiff" and prayed for a decree for Rs. 951. 75 P. as the difference between the two reciprocal claims recoverable from the plaintiff, though it is not clear how this figure was arrived at. The defendant paid Court fee on the aforesaid amount of Rs. 951. 75 paise.

(2) ON the claim of the defendant questions arose as to whether the court below had the pecuniary jurisdiction to try the question of set off in this case and whether the court fee paid by the defendant was sufficient. Two additional issues were framed, Nos. 9 and 10, to cover the aforesaid questions of jurisdiction and court fee and the learned munsif by his order dated 30th June, 1968 held that the court had jurisdiction and the court fee paid was adequate on the view that the amount relevant in this connection was rs. 951. 75 paise, the figure in excess of the plaintiffs demand. The instant Rule was issued at the instance of the plaintiff against the said order.

(3) BROADLY speaking the plea of set off is one to obtain credit for the amount due to the defendant in a suit brought by the plaintiff to recover a sum of money from the defendant. The law as to set off is contained in O. 8, Rule g of the Code of Civil Procedure which is in the following terms:

" (1) Where in a suit for the recovery of money, the defendant claims to set off against the plaintiffs demand any ascertained 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 set off. (2) The written statement shall have the same effect as a plaint in a cross-suit so as to enable the court to pronounce a final judgment in respect of both the original claim and of the set off; but this shall not affect the lien, upon the amount decreed, of ary pleader in respect of the costs payable to him under the decree. (3) The rules relating to a written statement by a defendant apply to a written statement in answer to a claim of set off".

(4) FROM sub-rule (1) of rule 6 quoted above it is clear that the amount that the defendant claims to set off against the plaintiffs demand must not exceed the pecuniary limits of the courts jurisdiction. Apart from the principle of set off embodied in order 8, rule 6, the courts in their discretion can also allow a claim of set off not falling strictly within the scope of the aforesaid provision if the set off claimed arises out of the same transaction or a transaction so connected with the one giving rise to the plaintiffs demand that it would be inequitable to drive the defendant to another suit. This is known as the doctrine of equitable set off. Order 20, Rule 19 (1) of the Code prescribes the form of decree to be passed when set off is allowed. It provides that "where the defendant has been allowed to set off against the claim of the plaintiff, the decree shall state what amount is due to the plaintiff and what amount is due to the defendant, and shall be for the recovery of any sum which appears to be due to either party. " This provision will apply as sub-rule (3) of rule 19, order 20 expressly states whether the set off allowed is legal or equitable set off. Thus, when set off is claimed the court has to adjudicate on the mutual demands and therefore the entire amount claimed by way of set off must be within the pecuniary jurisdiction of the court trying the suit and not merely the difference between the two rediprocal claims. This was the view expressed by this Court in (1) Brojendra nath Das v. Budge Budge Jute Mill co, Ltd. , ILR 20 Cal 527 [LQ/CalHC/1893/13] . The amount of set off claimed in the instant case is rs. 3849,40 paise and it appears that the court below has pecuniary jurisdiction up to Rs. 3500/- only. Clearly, therefore, form the claim of set off in this case is boyond the jurisdiction of the court to try and the court below was in error in thinking that the amount which might be found due to the defendant ii! the set off was allowed would determine the question of jurisdiction.

(5) ON the question of court fee also the court below was wrong. Under schedule I, Article 1 of the Court Fees act, ad valorem court fee is payable on the full amount sought to be set off and not merely on the difference between this amount and the amount of the plaintiffs claim. This seems to be the uniform view held by the different High courts as would appear from the following decisions:- (2) Ratan Lal v. Madari, AIR 1950 Allahabad 237. (3) Giridharilal v. Surajmal, AIR 1940 Nagpur 177. (4) Jugal Kishore v. Bankey beharilal, AIR 1935 Patna 110.

(6) IT is not clear why the learned munsif in his judgment entered into a discussion of the doctrine of equitable set off because it is quite clear from the written statement that what the defendant claims in this case is not equitable but legal set off under Order 8, Rule 6. Besides, it is also well established that there is no difference between an equitable set off and a legal set off in the matter of court fees; reference may be made on this point to AIR 1950 allahabad 237 mentioned above and a Bench decision of this court in (5) A. Z. M. Reazi Karim v. Md. Israil Ostagar, air 1939 Cal. 415 [LQ/CalHC/1939/67] . It has been held that the word "set off" in Schedule I, article 1 of the Court fees Act, not having been qualified in any way, must include not only a legal set off but also an equitable set off.

(7) THIS Rule must, therefore, be made absolute and I order accordingly. The order complained of is set aside. The court below will now decide issues nos. 9 and 10 in the light of the observations made above and then proceed according to law.

(8) TAKING into account all the circumstances of this case, I make no order as to costs.