Ontethupalli Chinnappa Reddy, J. - (1.) THE respondent filed a suit for specific performance of an agreement of sale or in the alternative for the return of an amount of Rs. 47,000/ - said to have been paid by way of advance towards consideration and for the recovery of Rs. 10,00 / - by way of damages. The Defendant filed written statement in which he denied the claim of the Plaintiff to specific performance and damages or for the return of the amount of Rs. 47,000/ - in paragraph B of the written statement he pleaded that far from his having committed default of the agreement, it was the Plaintiff that had committed the default. According to the Defendant he had suffered considerable loss and the Plaintiff would be liable to pay a huge amount of money by way of damages to him. After stating that, he added the following sentences: - The Defendant, therefore, claims adjustment in equitable set off from the Plaintiff for the full amount of Rs. 47,000/ - paid by Plaintiff No. 2 and nothing remains repayable to the Plaintiffs by Defendant No. 1. Taking advantage of this sentence, the plaintiff raised a preliminary objection in the lower court contending that what the defendant was claiming was an equitable set off, therefore, he was bound to pay court -fee on that claim. The learned Senior Subordinate Judge, Chandigarh, upheld the preliminary objection and directed the defendant to pay the Court -fee. The defendant has preferred this revision it is clear from a perusal of paragraph 3 of the written statement that what the defendant was in fact pleading was that far from his having committed any default of the agreement, it was the plaintiff who had committed such default and that it was the plaintiff and not the defendant that was liable for damages. That was the reason for his claim in paragraph 8 that he was not bound either to return the amount of Rs. 47,000/ - or to pay any damages to the plaintiff. It was not case at all either of adjustment or of set -off Simply because he added a wholly superfluous sentences towards the end of the paragraph, he candent invited my attention to the case Dr. Jessie George W.N.S. v. Mrs. Shakuntla Hari Dass, A.I.R. 1950 E.P. 225, where a distinction was drawn between a legal and equitable set -off. The facts of that case show that the defendant claimed certain amounts for carrying out repairs, etc., and wanted thouse amounts to be set -off against claim of the plaintiff for use and damage of the premises. It was a clear case of equitable set -off and we are not concerned with such a situation in the present case.
(2.) THE Civil Revision is, therefore, allowed and the order of the lower Court is set aside. The lower Court is directed to proceed with the trial of the suit as expeditiously as possible. There is no order as to costs.;