S.S.SARON, J. - (1.) THIS revision petition has been filed by the defendant- petitioner under Article 227 of the Constitution of India against the order dated 24.1.2004 (Annexure-P-1) passed by the learned Civil Judge (Junior Division), Mansa, whereby the application filed by him under Order 6 Rule 17 of the Code of Civil Procedure ('CPC' - for short) for amendment of his written statement for claiming set-off in respect of the crop sold to the plaintiff has been dismissed.
(2.) THE plaintiff-respondent filed a suit for recovery of Rs. 1,31,8000/- etc. against the defendant-petitioner on the basis of pronote. The defendant- petitioner contested the suit and he filed his written statement dated 12.8.2002 (Annexure P/2). The issues in the case were framed on 10.9.2002 and on 14.10.2002 the plaintiff concluded his evidence. The defendant despite being given as many as eight opportunities did not conclude his evidence and on 7.5.2003 he was given last opportunity to lead his evidence subject to payment of Rs. 100/- as costs. It was also ordered that in case the defendant does not conclude his evidence, his evidence would be deemed to the closed. The case was adjourned to 14.5.2003 on which date the defendant filed an application seeking amendment of the written statement in terms of Rule 6 Order 17 C.P.C. The defendants-petitioner sought amendment for raising the plea of set-off in the following terms : "Para No. 11(a) Set off : That the plaintiff is the commission agent of the defendant. The defendant sold his winter crop for the year 1999 on the shop of plaintiff, which was 95 quintals in weight @ Rs. 520/- per quintal. Plaintiff did not make the payments till today and defendant is entitled for the recovery payments of Rs. 49,400/- along with interest @ 2% per month from the plaintiff. If in any case the suit for recovery of the plaintiff is decreed in his favour then in that case and circumstances the defendant is entitled to recover/deduct the amount of Rs. 49,400/- along with interest since 1999 as a set-off. Para No. 12 : It may kindly be added after the last words that "If in any case the suit of the plaintiff is decreed then as a set-off the amount of Rs. 49,400/- along with interest @ 2% per month since April 1999 which is due with the plaintiff for the payments of 95 quintal of wheat @ Rs. 520/- per quintal may kindly be deducted from the decreed amount". The said application was considered by the learned Civil Judge (Junior Division) Mansa who by her order dated 24.1.2004 (Annexure P/1) has dismissed the same, inter alia observing that the application cannot be accepted and the defendant cannot be allowed to add the plea of set-off in the written statement being a time barred relief. It was observed that it was clear from the pleadings of the applicant-defendant made in the application that he sold 95 quintals of wheat to the plaintiff which was the Harri crop pertaining to year 1999. It was further observed that this relief could be claimed by the applicant-defendant within three years from Harri (Rabi) 1999. Even otherwise, the defendant has failed to mention the date on which he sold the wheat to the plaintiff. Accordingly, the application seeking amendment of the written statement was declined by the impugned order, which is assailed by the petitioner in the present petition.
(3.) LEARNED counsel appearing for the petitioner has contended that in fact a plea regarding set-off had already been made in the written statement that was filed on 12.8.2002 (Annexure P/2) which is evident from its perusal. As such, it is contended that it cannot be said that these facts were not pleaded or that without leading evidence, the defendant-petitioner has filed the application as an excuse to gain time by taking the plea of set-off. It is further contended that the relief which he has claimed as a set-off is by way of equitable set-off for which there is no period of limitation as there is a fiduciary relationship between the parties, which is also already pleaded in the written statement (Annexure P/2). Therefore, the application was not liable to he dismissed on the ground that it is barred by limitation. In support of the contention with regard to the plea of equitable set-off, learned counsel has referred to the commentary from the Code of Civil Procedure by justice C.K. Thakkar and submitted that a claim of equitable set-off may be allowed as it cannot be time barred when there is a fiduciary relationship between the parties.;