K. P. Singh, J. - (1.) -This First Appeal From Order under section 6-A of the Court Fees Act has been preferred by the defendants against the order of Vlth Additional Civil Judge, Kanpur Nagar dated 1-4-1987 whereby the realisation of deficient court fee from the defendants has been ordered.
(2.) THE plaintiff-respondent has claimed a sum of Rs. 3,01,714-28 P. with costs and interest as is evident from the plaint attached with the memo of appeal. THE defendants-appellants have contested the claim of the plaintiff- respondent and have asserted that they are entitled to reimbursement of Rs. 3,10,000/- from the plaintiff-respondent on the ground mentioned in paragraph 13 of the written statement as is evident from the copy of the written statement attached with the memo of appeal. It has been alleged that the defendant-appellants are claiming a sum of Rs. 8285-70 P. only after adjusting the amount claimed by the plaintiff. THErefore, according to the appellants they could not be called upon to pay court fee on the whole amount claimed by them by way of damages from the plaintiff. It has been stressed that only on excess amount claimed by the defendants from the plaintiff the defendants are liable to pay court fee which has been paid. The trial court framed a necessary issue regarding the court fee payable by the defendants in the facts and circumstances of the case and has decided the issue against the defendants as is evident from the order dated 1-4-1987 attached with the memo of appeal. Aggrieved by the order of the Trial Court the defendants have preferred the above-noted First Appeal From Order. Before us the learned counsel for the appellants has contended that in view of the allegations in the plaint and the written statement it is evident that the defendants-appellants have claimed only adjustment of the amount claimed by the plaintiff and they have claimed excess amount over which they have paid court fee, therefore, the impugned order demanding deficient court fee from the appellants is bad in law and it should be set aside. The learned counsel for the appellants has invited our attention to a ruling reported in New Victory Mills Co. Ltd. v. Madras Company, AIR 1966 All. 619 and has emphasised before us that the facts involved in the aforesaid ruling are similar to the facts involved in the present case under consideration, therefore, the plea of adjustment raised by the appellants should have been accepted by the Trial Court. Paragraphs 7, 8, 9 and 12 of the aforesaid ruling have been emphasised by the learned counsel for the appellants.
(3.) LEARNED counsel for the plaintiff-respondent has tried to refute the contentions raised on behalf of the defendants-appellants. According to him the defendents-appellants have not pleaded any payment rather they have claimed specific amount by way of damages as is evident from the plea raised in paragraph 13 of the written statement therefore, it is a case of adjustment rather it is a case of plea of set off or counter claim. Therefore, he has justified the impugned order and has submitted that no exception can be taken to it. Learned counsel for the plaintiff-respondent has invited our attention to paragraph 11 of the aforesaid ruling cited by the learned counsel for the appellants and he has emphasised that according to the rulings of this Court as well as the rulings of other High Courts it; is well settled that the defendants appellants will have to pay the court fee as directed by the trial court in the impugned judgment. The rulings referred to by the learned counsel for the plaintiff-respondents are Chhakkan Lal v. Kanhaiya Lal, AIR 1923 All. 118, Girdhari Lal Chaturbhuj v. Surajmal Chauthmal Agarwal, AIR 1940 Nagpur 117, Ratan Lal v. Madari, AIR 1950 All. 237 and Durga Prasad v. Swami Avidya Nand Guru Swami Hamarata Nand, AIR 1958 All. 574, and it has been emphasised that the claim made by the defendants-appellants is for damages which is entirely different from the plea of adjustment. Therefore, no exception should be taken to the impugned judgment of the Trial court.;