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Revision.- Under section 119, Act VIII of 1859, an order setting aside a judgment was final, and under the present procedure no appeal is allowed. This was held to mean an order passed within jurisdiction, under the conditions specified by law; if it were otherwise, as if it were passed on an application made after 30 days, the Court exer: çised a jurisdiction it did not possess, and, though no appeal would lie, the order could be set aside on motion under the Charter-Luckhee Wonee vs. Bhoobun Mohun, 23 W. R., 147; or on application in the nature of a review to the Judge who passed the order-Sheo Prosunno vs. Buldharee, 13 W. R., 232.
How Contested.--And though a proper order is so far final that it is not open to appeal, its propriety may be contested in appeal from the final decree. Thus, where an application for re-hearing was admitted after 30 days, all proceedings subsequent to the order of admission were set aside in appeal from the final decree-Rung Lall vs. Tokhun, 25 W. R., 301 ; Bimola vs. Kalee Kishen, 22 W. R., 5; but in another case the Judges seemed to look upon such an order as not affecting jurisdiction, but as a mere irregu. larity, such as the admission of evidence in appeal without recording the reason, and to hold that the Courts are bound to decide on the whole evidence in the cause-Boro Khosiah vs. Jata Sirdar, 15 W. R., 315; 8 B. L. R., 78. And therefore it was held that. if the objection is not raised in the first Appellate Court, it is too late to raise it in second appeal. (Id.)
Where one of several defendants got the case re-opened, and another who did not appear in time was allowed the benefit of the dismissal which ensued, it was held that the Appellate Court was wrong in setting aside the judgment of the Lower Court, as regards the latter defendant, on the ground that he had not appeared in time-Koroona Moyee vs. Nubo Kishen, 11 W. R., 18.
Effect of Revival.-An application by one co-defendant re-opens the case against all the defendants where the objection is a ground common to all; otherwise notDookher vs. Rajessuree, 15 W. R., 371; and the Court has no power to impose termsThe Administrator-General of Bengal vs. Lala, 6 B. L. R., 688. In a suit for rent against A, B and C, which was decided ex-parte, C applied under Act X of 1859 for a review, and proved that he had no connection with the property; the decree remained in force against A and B-Doorga Persaud vs. Greeshchunder, 1 W. R., 222. And so, where B and C were held liable as principal and surety, and the latter applying for a re-hearing, the case was set down and ultimately dismissed on default by non-attendance of both parties, the decree continued against B, but not against C-Gudadhur Chatter. jee vs. Nund Lall, 12 W. R., 406.
When an ex-parte decree is set aside by admitting a re-hearing all processes issued in execution under the decree are also set aside. Thus, A obtained, a decree ex-parte against B, and attached his property. Afterwards B sold it to C, and then applied for and obtained an order for re-hearing under this section ; it was held that the sale was not void, for that the effect of the revival was to set aside the attachment as having been invalidly made--Lala Jagat vs. Tulsiram, 1 B. L. R., 71, and see Joobraj vs. Buhooria, 7 C. L. R., 424. But in a case in which A obtained an ex-parte decree against Rand others, and in execution sold R's interest in certain landed property and bought by A, and R succeeded in reviving the suit, it was held that the sale could not be set aside as void-Gowree Boyjo Nath vs. Jodha, 19 W. R., 416, which would seem to show that the decree and attachment were not invalid, but the distinction between purchase by a stranger and purchase by the decree-holder was not adverted to--Zainalabdin vs. Ashgar Ali, 15 Ind. App., 12.
Defendant applied under section 119, Act VIII of 1859, and his application was rejected. He appealed, the suit was remanded, and the first Court admitted the application. Plaintiff then appealed, the order was reversed, and both parties went back to the Munsiff, who recorded that his original order should stand. In the meantime the second order of the Appellate Court was set aside in special appeal. It was held, the effect of this decision was to set aside all the proceedings subsequent to the order appealed against, and to confirm the order of the first Court admitting the defendant to contest the suit-Nubo Kristo vs. Nudiar Chand, 12 W. R., 374.
Practice after Revival.--When a case is restored, the Court should allow the plaintiff to recall his witnesses or to call other witnesses, and to permit the defendant to cross-examine them, for evidence taken in the absence of the defendant cannot be used against him-Ram
Buksh vs. Kishoree Mohun, 12 W. R., 130 ; though it is doubtful if all the expenses of obtaining and serving fresh summonses on the witnesses should be thrown on the plaintiff - Bishen Perkosh vs. Ruttun Geer, 20 W. R., 3.
Affidavits not Allowed.-In an appeal from an order of rejection under section 119, Act VIII of 1859, the appellant then tendered an affidavit, explaining conduct in the Lower Court, as evidence under section 355, Act VIII of 1859, but it was rejected -Leslie vs. Allender, 17 W. R., 390.
CHAPTER VIII. OF WRITTEN STATEMENTS AND SET-OFF. 110. The parties may, at any time before or at the first
hearing of the suit, tender written statements Written statements.
of their respective cases, and the Court shall receive such statements and place them on the record.
Act VIII of 1859, section 120. This section applies to H, C.
Parties.-A third party will not be allowed to file a statement for a plaintiff or defendant who has neglected to do so himself--Sreemutty Denomoyee Dassee vs. Tara Churn Coondoo, Bourke, 153; on the other hand, if the parties are present in person or by pleader, the mere fact that defendant has not filed a written statement does not warrant trying the suit ex-parte-Sivarajadh vs. Ruppagantulu, 2 d., 311.
First Hearing.-Written statements filed at or before first hearing need not be stamped-Nagu vs. Yeknath, I. L. R., 5 Bom., 400; Cherag Ali vs. Kadir, 12 C. L. R., 367. They should not be received after the first hearing (which should be fixed so as to give the parties due and reasonable time to prepare them) -- Lokhenath vs. Sobanath, 5 W. R., Act X, 39; Munchershaw vs. The New Dhurumsey Co., I. L. R., 4 Bom., 576, except under the circumstances described in sections 111 and 112, and in answer to written statements required by the Court.
Under the old procedure the words were “at the first hearing of the suit," and it was held that the admission of written statements on several dates was wrong-Mirza Ali vs. Mirza Torab, W. R., 1864, p. 44.
In a suit for wrongful dismissal if a defendant wishes to give evidence of a specific transaction in justification for dismissing the plaintiff, which he becomes aware of after he has filed his written statement, he should before first hearing) file a supplementary written statement setting it forth-Munchershaw vs. The New Dhurumsey Co., I. L. R., 4 Bom., 576.
Appellate Court.-A Court of Appeal cannot call for a written statementJuggessur vs. Gopee Kishen, 5 W. R., 50. 111. If in a suit for the recovery of money the defendant
claims to set-off against the plaintiff's deParticulars of set-off to be given in written mand any ascertained sum of money legally statement.
recoverable by him from the plaintiff, and if in such claim of the defendant against the plaintiff both parties fill the same character as they fill in the plaintiff's suit, the de. fendant may, at the first hearing of the suit, but not afterwards unless permitted by the Court, tender a written statement containing the particulars of the debt sought to be set-off. The Court shall thereupon inquire into the same, and if it
finds that the case fulfils the requirements Inquiry.
of the former part of this section, and that the amount claimed to be set-off does not exceed the pecuniary limits of its jurisdiction, the Court shall set-off the one debt against the other. Such set-off shall have the same effect as a plaint in a
cross-suit so as to enable the Court to proEffect of set-off.
nounce a final judgment in the same suit, both on the original and on the cross-claim ; but it shall not
affect the lien, upon the amount decreed, of any pleader in respect of the costs payable to him under the decree.
Illustrations. (a) A bequeaths Rs. 2,000 to B, and appoints C his executor and residuary legatee. B dies and D takes out administration to B's effects, C pays Rs. 1,000 as surety for D. Then D sues C for the legacy. C cannot set-off the debt of Rs. 1,000 against the legacy, for neither C nor D fills the same character with respect to the legacy as they fill with respect to the payment of Rs. 1,000.
(6) A dies intestate and in debt to B. C takes out administration to A's effects, and B buys part of the effects from C. In a suit for the purchase-money by C against B, the latter cannot set-off the debt against the price, for C fills two different characters-one as the vendor to B, in which he sues B, and the other as representative to A. (See 17 Beav., 542.]
(c) A sues B on a bill-of-exchange. B alleges that A has wrongfully neglected to insure B's goods, and is liable to him in compensation, which he claims to set-off. The amount not being ascertained cannot be set-off.
(a) A sues B on a bill-of-exchange for Rs. 500. B holds a judgment against A for Rs. 1,000. The two claims being both definite pecuniary demands may be set-off.
(e) A sues B for compensation on account of a trespass. B holds a promissory note for Rs. 1,000 from A, and claims to set-off that amount against any sum that Å may recover in the suit. B may do so, for as soon as A recovers, both sums are definite pecuniary demands.
(s) A and B sue C for Rs. 1,000. C cannot set-off a debt due to him by A alone. (g) A sues B and C for Rs. 1,000. B cannot set-off a debt due to him alone by A.
(n) A owes the partnership firm of B and C Rs. 1,000. B dies, leaving C surviving. A sues C for a debt of Rs. 1,500 due in his separate character. O may set-off the debt of Rs. 1,000.
Act VIII of 1859, section 121. This section applies to H. C. and P. S. C. C.
Set-off, at Law.-Set-off, at law, is founded on Statute, and to prevent crossactions. It was not intended to give new rights, except to the extent of giving facilities for the enforcing of rights which were already enforceable in an action ; and it has always been accordingly held, that a set-off can only be successfully pleaded when an action could have been maintained for the same debt-Rawley vs. Rawley, 1 Q. B. D., 469; and see Winterfield v. Bradnum, 3 Q. B. D., 324, p. 326.
Time of Pleading - Where defendant did not raise an issue in regard to set-off in the first Court, their Lordships of the Privy Council declined to entertain it-Nan Karay vs. Ko Htaw, L. R., 13 Ind. App., 48, p. 56 ; I. L. R., 13 Cal., 124.,
Written Statement : Presumption of Authenticity.--Primâ facie credit must be given that a pleading proceeds from a person properly qualified to represent the person on whose behalf it is filed-Soorendronath Roy vs. Heeroomonee, 10 W. R. (P.C.), 35; and the mention of a person in pleadings purporting to be filed by him is evidence that he was a party to the suit-Radha Parshad vs. Lal Sahab, 17 Ind. App., 150; I.L.R., 13 Alla., 53.
Equitable Set-off.-- The Madras High Court, in referring to the corresponding sections of Act VIII, 1859, said.-" These are provisions of a Code regulating procedure only, and whilst we think that the language used has not the effect of enlarging the right of set-off, we ought at the same time to say that, according to our present opinion, the Procedure Code was not intended to take away any right of set-off, whether legal or equitable, which parties would have independently of its provisions. It seems to us that the right of set-off will be found to exist not only in cases of mutual debts and credits, but also where the cross-demands arise out of one and the same transaction, or are so connected in their nature and circumstances as to make it inequitable that the plaintiff should recover and the defendant be driven to a cross-suit"-Clark vs. Ruthnavaloo, 2 Mad., 296 (followed in Bhagbat vs. Bamdeb, I. L. R., 11 Cal., 557, and Chisholm vs. Gopal Chunder, I. L. R., 16 Cal., 711 ; Kishorchand vs. Madhowji, I. L. R., 4 Bom., 407 ; Pragi Lal vs. Maxwell, I. L. R., 7' Alla., 284); it is not opposed to the intention of the parties-Kistnasamy vs. Municipal Commissioners for Madras, 4 Mad., 120. And when A sued on a contract to recover the price of wood supplied, a set-off of damages for breach was allowed, on the ground that the contract contained a clause indemnifying the defendants against loss arising from failure to fulfil-Pragi Lal vs. Maxwell, 1. L. R., 7 Alla., 284; and see I. L. R., 4 Bom., 407. And so it has been held that where the right of set-off arises out of one and the same transaction, it would not be equitable to drive a party to a regular suit where the claim could be dealt with in execution of a decreeRadha Ram vs. James, 20 W. R., 410. See also, on equitable set-off -- Middleton vs. Pollock, L. R., 20 Eq., 515 ; Vulliamy vs. Noble, 3 Mer., 593 ; Ex-parte Stephens, 11 Ves., 24; Ec-parte Blaquire, 19 Ves., 461; É.x-parte Toogood, '11 Ves., 516; Aldis vs. Knight, 2 Mer., 121; Lord Lanesborough vs. Jones, 1 P. Wms., 326 ; Ex-parte Flint, 1 Sim., 33; and as to mutual credit, see Young vs. Bank of Bengal, 1 Moore, 87; Ex parte Morier, 12 C. D., 491 ; In re Whitehouse, 9 C. D., 597 ; Peat vs. Jones, 8 Q. B. D., 117 ; Narrandas vs. Vissandas, I. L. R., 6 Bom., 131; Hajee Syud vs. Ashrufoonnissa, I. L. R., 5 Cal., 759 ; Miller vs. Beer, 6 L. R., 294; Lakshmayya v. Jagannatham, I. L. R., 10 Mad., 199 ; Sitayya v. Rangareddi, I. L. R., 10 Mad., 259. A sued B for compensation for wrongful dismissal, B denied wrongful dismissal, and claimed to set-off a sum of Rs. 36,000 as due from A to B in balance of account of certain transactions entered into by A aud B in co-partnership while A was in B's service. A disputed the accuracy of the account. The Court found in favour of A's claim, ordered an account to be taken of the co-partnership transaction between A and B, and directed that the sum which on the taking of the account might be found due from A to B should be set-off against the amount decreed to A--Bradley vs. Smallvood, High Court, Calcutta, May 1, 1884. See also The Secretary of State vs. Jalari Lal, I. L. R., 13 Alla., 296.
In a suit for account by a mortgagor against a mortgagee in possession under a Zurpeshyi lease, the rents unpaid by the mortgagee, though barred by limitation were set-off against the mortgage debt-Nurshingh Nurain vs. Lukputty, I. L. R., 5 Cal., 333. And as to set-off of arrears of rent against improvements on redemption even if the right of the person making them has been pledged, see Achuta vs. Kali, J. L. R., 7 Mad., 545.
Not Payment.-A claim to set-off a cross-demand should not be confounded with a plea of payment. A sued B for arrears of rent. B stated that his tenure had been managed for some time by the Collector, who, in addition to other demands, had realised the rent. It was held a plea of payment and not of set-off - Koonjo Behary vs. Nilmoney, 4 C. L. R., 296.
For Money.-Under Act VIII, 1959, the suit must have been for a debt-Rotee Rumun vs. Greeja, 5 W. R., 160; it is not so under the present law--See Ilustration (e), though the result of the claim and set-off must be a pecuniary liability-See the Eberle's Company vs. Jonas, 18 Q. B. D., 459; Miller vs. The National Bank, I. L. R., 19 Cal., 146. Quære, if a suit for an account falls within the section-Nan kuray vs. Ko Htaw, 13 Ind. App., 48, p. 56 ; I. L. R., 13 Cal., 1:24 ; but a suit for dissolution of partnership with a prayer that the balance due should be paid is within the section-Ramjivan Vs. Chand, I. L. R., 10 Alla., 587.
The same Character.--In a suit by a Hindu widow for a debt, the defendant can set-off a debt due to her deceased husband Watson & Co. vs. Brojoo Soonuree, 16 W. R., 224 ; Grish Chunder vs. Koomaree, 1 W. R., Mis., 23. And in a suit by the son of a deceased Hindu as his heir on a promissory note, a set-off was allowed of debts due by the deceased to the defendant-Chennappa vs. Raghunatha, I. L. R., 15 Mad., 29. But an amount due as manager cannot be set-off against a personal liability- Abdul Hassan vs. Zohra, I. L. R., 5 Alla., 299.
A took a loan from C under a bond pledging the shares of himself, his minor brother and cousin, and, covenanting that the interest should be credited to the rent of the shares pledged, let in farm to C. In a suit for rent by A and the others C pleaded a set-off of the interest. The Court found the bond proved as against A only and allowed a set-off as regards him, but not as regards the others-Futteh Narain vs. Deen Dyal, 15 W. R., 37 ; see Lalit Mohan vs. Srinibus, I. L. R., 13 Cal., 331. But A cannot set-off against a claim made by B in respect of separate dealings between him and A, a debt due from a firm consisting of a father and two sons, one of whom is B-Dhunpal Singh vs. Forbes, 1 Ind. Jur., N. S., 354; unless B was the sole beneficial owner of the assets of the firm and could compel his father and brother to transfer them into his name alone-Ex parte Morier, 12 C. D., 491 ; and in action against A for money he cannot set-off his share of a debt due him and others---Boryear vs. Parson, 6 Q. B. D., 510.
Plaintitf, one of several co-sharers, sued a lessee of a portion of an estate for his share of the rent; the claim was admitted. But the defendant pleaded as a set-off that he had paid money on account of the plaintiff's share of arrears of the Government revenue for the same period : Held, that this was not admissible as a set-off under section 121 of Act VIII of 1859, but was the subject of a separate snit in which other sharers should be joined. It was never the intention of section 121 that two suits entirely different in character should be tried together-Hossena vs. Smith, 22 W. R., 15; 13 B. L. R., 440.
Assignees.- Purchasers and assignees with notice represent their vendors and assignors. Thus where A by a deed of Zurpeshgi lets certain lands to B to secure a debt, and B covenanted to pay a certain sum annually ; on failure by B, A obtained a decree for the amount due. Subsequently C, in execution of a decree, bought B's interest in the sum lent, and sued A to recover the same : Held, A was entitled to set-off his decree against C--Bhagawani vs. Lalo, 2 B. L. R., 81. But there is no set off on the ground of mutual credit against an equitable assignee-Lee and Chapman's Case, 30 C. D., 216 ; nor at all if the assignee gives notice to the fund holder, and the latter has not a lien, but only a right of retainer-Webb vs. Smith, 30 C. D., 192, p. 199.
Rent.-In a suit for rent by a putnidar, purchaser, against a darputnidar, the latter can set-off money paid by him to prevent the sale of the patni tenure for its own arrears,
although the arrears may have been for a period previous to the putnidar's purchase – Lalit Mohan vs. Srinibas, I. L. R., 13 Cal., 331 ; but the claims must be between the same parties—Bhoirub Chunder vs. Hafézunnissa, 2 C. L. R., 414, and Illustration (g), supra.
Insolvent.-Where a debt is due by an insolvent prior to insolvency to a person who owes a debt to the former, they may be set-off in a suit by the Official Assignee-Miller Vs. Beer, 6 C. L, R., 294.
Legally Recoverable.—The sum must be legally recoverable-Kumar Rukhini vs. Mulk Jamanii, 12 C. L. R., 531; I. L. R., 9 Cal., 914. A defendant cannot claim to set-off a sum expended in repairing a house without authority - Zumeerunnissa vs. Gayer, 6 W. R., Ref., 26 ; or in respect of a demand already dismissed--Abdoollah vs. Sreekunto, 15 W. R., 232 ; or barred by limitation-Heeralal vs. Bishen Suhaye, 2 W. R., 296 ; or an infant's debt-Rawley vs. Rawley, 12 Q. B. D. 461 ; or based on a decree incapable of being enforced-Huro Pershad vs. Fool Kishoree, 16 W. R., 308.
“Recoverable by him from the Plaintiff.” – Where a promissory note has been endorsed when overdue, and a suit is brought by the endorsee against the maker, the latter cannot set-off a debt due him by the payee of the note-E.c-parte Swan, L. R., 6 Eq., 359.
A contributory cannot set-off a debt due to him from the company against calls made in winding-up--In re Whitehouse, 9 C. D., 595; In re General Works Company, 12 C. D., 753. See also Seton on Decrees, p. 782, et seq.
Ascertained Sums.- The sum sought to be set-off under this section must be a sum ascertained, that is liquidated and not damages undetermined- Pragi Lal vs. Maxwell, I. L. R., 7 Alla., 284 ; something in the nature of a debt, see paragraph 2 of this section, supra. Such as a liquidated amount due under a bond-Watson d: Co., vs. Brojo Soonduree, 16 W. R., 224; but not a claim for contribution, the amount of which remains to be determined-Hossena vs. Smith, 22 W. R., 15; nor for costs not awarded-Huro Pershat vs. Fool Kishoree, 16 W. R., 308 ; but this limitation does not apply to equitable set-off, or where it has been also agreed upon--Kistnasamy vs. Municipal Commissioners for Madras, 4 Mad., 120; K'ishorchand vs. Madhouji, I. L. k., 4 Bom., 407.
In a suit on bills-of-exchange, a set-off arising from a claim to damages sustained by reason of the plaintiff's failing to insure goods unconnected with the hoondees was not allowed-Clark vs. Ruthnavaloo, 2 Mad., 296 ; nor even a claim for damages by reason of the goods pledged to secure the bills have been sold in violation of an agreement between the parties—Ram Dyal vs. Ram Dhun Dass, 3 Agra, 43; nor in a suit for money lent on a usufructuary mortgage will a claim for damages on account of waste of the mortgaged property be allowed-Ragu Nuih vs. Ashraf Hussein, 1. L. R., 2 Alla., 252; contra-Shira Deri vs. Juru, I. L. R., 15 Mad., 290.
In a suit for money claimed on account of the carriage of goods, a set-off on account of damage caused to the goods was not allowed--Scanlan vs. Harrold, 10 W. R., 295; in a suit on an arbitration-award defendant pleaded a set-off on account of certain debts, payable jointly according to the award, which he had paid,--it was held that a set-off was admissible, but the Court must enquire into each disputed item of the demandGouri Sahai vs. Ram Sakai, 7 Alla., 157; but otherwise where the claim was not for debts ascertained, but for the balance of a separate account as yet undetermined-Kalee Coomar vs. Huro Chunder, 17 W. R., 177. In this last case some stress seems to have been laid on the fact that the claims were altogether of another nature ; but looking at Illustration (e), that by itself would hardly be a valid objection under this Code. See, however, Abul Hasan vs. Zohra, I. L. R., 5 Alla., 299, p. 301.
Jurisdiction. The nature of the set-off, and the amount of it, must be within the cognizance of the Court--Ram Lal vs. Lancaster, 3 Alla., 114; Heeralal vs. Bishen Suhaye, 1 W. R., 297. But where a suit was brought under the Small Cause Court Jurisdiction of a Subordinate Judge and the defendant claimed a set-off above that; but within his ordinary jurisdiction ; Held, he could under the law then in force try the set-off-Rampratap vs. Ganesh, I. L. R., 12 Bom., 31 ; but this is not the present law - Barote Gaga v. Sepoy Panju, I. L. R., 14 Bom., 371.
By sections 89, 90° of the Judicature Act, 1873, a Court of limited jurisdiction can entertain a claim by way of counter-claim, although it is in respect of matters which arise beyond its local jurisdiction and which could not be put forward in an original action-Davies vs. Flag Statt Silver Co., 3 C. P. D., 228. No such power is given under this Code and see section 6, ante. But it is no defence to a claim of set-off that it will not amount to the plaintiff's claim-Mostyn vs. West Mostyn Co., 1 C. P. D., 196, or that the claim did not arise before the date of the plaint-Ellis vs. Manson, 35 L. J., 586; but see 5 C. D., 713.
Plaint in a Cross-Suit. -- The claim is to be treated as a plaint in a cross-suit, and is chargeable with a Court fee payable on a plaint of that nature--Bai vs. Narotam, I. L. R., 13 Bom., 672; Amir Zamu vs. Nathu, I. L. R., 8 Alla., 396; Chennappa vs. Raghunatha, I. L. R., 15. Mad., 29. Thus, a defendant may deny plaintiff's claim, plead a set-off and get a decree for it, though no sum has been found due to the plaintiff-Hayatkha vs. Abdula, 6 Bom., 151 ; but see Huro Soonduree vs. Bungshee,