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Allahabad High Court
Pir Bakhsh And Anr. vs Rameshwar Nath on 9 July, 1928
Equivalent citations: AIR 1929 All 52
Author: Dalal


Dalal, J.

1. The plaintiff sued for possession of four shops and for arrears of rent at the rate of Rs. 100 a year for a certain period of time. The suit was resisted. The question of possession is of no importance now,because possession has been decreed and that decree Mr. Shambhu Nath Seth on behalf of the respondent does not contest now. The claim for rent was disallowed on the ground that the plaintiff had not put the defendant in possession of one shop altogether and in possession of two of the shops only partially. The defendant further claimed a set-off which was decreed. It is argued that the decree is contrary to the provisions of O.8, Rule 6, Civil P.C. I am not in agreement with the Calcutta case quoted by the two subordinate Courts, Manindra Chandra Nandi v. Narendra Chandra Lahiri [1919] 46 Cal. 956. Fletcher, J., in delivering the judgment, of the Court has applied certain technical rules of English. Law to India. Another Bench of the Calcutta High Court in Nagendra Chandra Lahiri v. Manindra Chandra Nandi A.I.R. 1922 Cal. 153 was doubtful as to the application of the English principles of law to Indian conditions. There is no ruling on the subject of this Court, and if the plaintiff had sued for the recovery of arrears of proportionate rent, I would have decreed it. The suit, however, was one for the entire amount of rent, and even in the grounds of appeal here no desire is expressed of recovering proportionate amount of rent. In this Court also the full rent is claimed on the ground that the defendant well knew the plaintiff’s want of title to one shop and to portions of two other shops and that the defendant was speculating in the matter. According to the plaintiff, the defendant knowingly took the lease and was prepared to pay the sum of Rs. 100 in spite of the want, of the title of the plaintiff to some of the shops. These allegations have not been proved. The case of the plaintiff, therefore, as put forward by him is not proved,, and I refuse to remand the suit at this stage for determination of the proportionate rent due to the plaintiff. The plaintiff’s suit for rent, therefore, fails here also, though for reasons different from those given by the two subordinate Courts.

2. Next as to the set-off, the appeal must succeed. Under the provisions of Order 8,. Rule 6, Civil P.C, the defendant in a suit for recovery of money can claim to set-off against the plaintiff’s demand any “ascertained sum” of money legally recoverable by him from the plaintiff In the present case the defendant desired a set-off of a sum due to him by way of damages which was not ascertained but could be determined after a protracted inquiry. Such a sum of money cannot be set-off under the provisions of the Code already quoted. The lower appellate Court ought not to have ordered any inquiry into the matter.

3. In the result I decree the appeal for the sum of Rs. 205-10-0 with proportionate costs of all the Courts. The rest of the appeal is dismissed with proportionate cost of all the Courts. The objection by way of appeal is dismissed because the ground 1 was not pressed and the ground 2 cannot, succeed when I refuse to grant a set-off. The decree of the lower appellate Court as regards the Rs. 205-10-0 is reversed and the decree of the trial Court in that particular substituted.

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