KAMAL DEVI Vs. DRCKHUDADAD

JUDGEMENT

(1.) This is a second appeal by a plaintiff against a decree which has dismissed part of her claim for arrears of rent. The plaintiff brought her suit against the defendant on two leases, one dated 1 March 1922, and the other dated 2nd June 1926, which was the renewal of an earlier lease. The lease of 1926 provides for instalments of rent at Rs. 400 per annum payable half-yearly in the first week of June and in the first week of December each year, and the lease of 1922 provides for annual rent of Rs. 300 in similar instalments. The defendant pleaded set-off, and various items of set-off have been allowed by the Court below. In grounds Nos. 3 and 5 the legality of allowing a set-off has been contested by the appellant plaintiff. The argument for the appellant is that under Order 8, Rule 6(1), a set-off is provided for as follows: Where in a suit for the recovery of money the defendant claims to set-off against the plaintiff's demand any ascertained sum of money legally recoverable by him from the plaintiff, etc.

(2.) The pleading is that a set-off under this Rule must be for an ascertained sum of money, and that unliquidated damages for breach of contract could not be set- off under this Rule. This has been held in various rulings, such as Najan Ahmad Haji Ali V/s. Sale Mahomed Peer Mahomed 1923 Bom 113 and Vithal Das Gulab Das V/s. Hyderabad S. & W. Co. 1923 47 Bom 182. But for the respondent it is pointed out that the wording of Order 20, Rule 19 is wider, and in Sub-rule (3) it is provided: The provisions of this Rule shall apply whether the set-off is admissible under Order 8, Rule 6 or otherwise.

(3.) Therefore the Code recognizes that a set-off is not limited to the set-off which is pleaded under Order 8, Rule 6. There are various rulings to this effect, such as Pragi Lal V/s. Maxwell (1885) 7 All 284, Bachchanlal V/s. Banarsi Das (1913) 35 All 238, Vyravan Chetty V/s. Nataraja Desikar 1917 39 Mad 939 and Panuganti Narasimha Rao V/s. S. Jagannatha Rao 1920 42 Mad 873, and the distinction has been pointed out by the learned Chief Justice in Bharat V/s. Chet Ram 1934 All 427. This Rule has been the subject of recent amendment as shown in Notification No. 5664/35(a) 7 dated 2 October, 1935, in which the words were added to Order 20, Rule 19(1): But no decree shall be passed against the plaintiff unless the claim to set-off was within limitation on the date on which the written statement was presented.