JAGAT NARAYAN, J. - (1.) THIS is a defendant's revision application against an order of the Senior Civil Judge, Jodhpur, refusing to try a counterclaim on the ground that it did not fall under Order 8, Rule 6 of the Code of Civil Procedure. The application has been contested on behalf of the plaintiff.
(2.) THE plaintiff instituted the present suit for the recovery of possession over a house and for mesne profits for the same property on the allegation that the defendant is his licensee that the licence was revoked and he was asked to deliver possession over the property but he failed to do so. THE defendant contested that suit. His case is that he is the tenant of the property in suit and not a licensee. Further he has alleged that there were money dealings between the parties, that there was a mutual open and current account running, that there was an agreement that the rent of the property in suit will be adjusted towards this account and that a sum of Rs. 4402. 3. 9 was due to him from the plaintiff on the date of the suit. THE defendant claimed a decree for this amount and paid court-fee on the written statement as if it were a plaint in a suit for the recovery of Rs. 4,402. 3. 9. On the pleadings of the parties the learned Senior Civil Judge framed the following issues: - (1) Was the defendant allowed to reside in the suit property by Raja Hari Singh without any rent due to his relations with him? or Was the defendant given the suit property on a rent of Rs. 25/- per month by Raja Hari Singh, and has the same to be adjusted against conveyance charges as alleged by the defendant? (2) If finding on issue No. 1 is in favour of the plaintiff, then what is the reasonable rental value of the suit property? (3) Was there any mutual open and current account between the defendant and the present plaintiff? (4) Is the claim preferred by the defendant within time? (5) If there was any mutual open and current account between the parties, then what is the amount due to the defendant from the plaintiff? (6) Can the counter claim preferred by the defendant considered in this suit? (7) Did the plaintiff authorise the defendant to remain in the property on a monthly rent of Rs. 25/-and did the plaintiff further authorise the defendant to adjust the sum of Rs. 25/- towards the amount said to be due from him? (8) Is the notice given by the plaintiff valid? Can the defendant resist the suit on this ground? (9) Did the defendant do any work for the plaintiff? If so, from which date to which? (10) To What relief is the plaintiff entitled? Issue No. 6 was tried as a preliminary issue and was decided against the defendant. THE grounds of decision were - (1) THE present suit by the plaintiff is not a suit for recovery of money within the meaning of Order 8 Rule 6. It is substantially a suit for recovery of immovable property to which the relief of mesne profits has been joined under the provisions of Order 2 Rule 4. (2) THE provision contained in Order 2 Rule 4 shows that it is the "policy of law that claims with respect to immovable property should be speedily disposed of and other claims should not be allowed to be joined with it as doing so is bound to delay the trial of the suit. If the counter claim of the defendant is tried along with the claim of the plaintiff the suit for recovery of immovable property would be delayed. (3) Although it is permissible for the court to try a counterclaim not falling under Order 8 Rule 6 this discretion can only be exercised where the claim and counterclaim are so well connected as to form part of the same transaction or where it would be hard to drive the defendant to a separate suit and such considerations are not applicable to the present case. On behalf of the plaintiff a preliminary objection was taken that the order of the learned Civil Judge refusing to try the counterclaim can be challenged in an appeal against the decree under sec. 105 C. P. C. Before dealing with the preliminary objection I would like to deal with the questions raised on behalf of the applicant in this revision application. Literally speaking "set off" and "counterclaim" mean one and the same thing. According to the Chambers's dictionary a "set-off" is a claim set against another and a "counterclaim" is a claim brought forward as a partial or complete set off against another claim. But in ordinary parlance the expression "set-off" is used for a counterclaim which does not exceed the claim of the plaintiff. In the Code the expression "counterclaim" has not been used. Only the expression "set-off" has been used, in Order 8 Rule 6 and Order 20 Rule 19 which are reproduced below: - O. 8 R. 6 'particulars of set-off to be given in written statement - (1) Where in a suit for the recovery of money1 the defendant, claims to set-off against the plaintiff's demand any ascertained sum of money legally recoverable by him from the plaintiff, not exceeding the pecuniary limits of the jurisdiction of the Court, and both parties fill the same character as they fill in the plaintiff's suit, the defendant may, at the first hearing of the suit, but not afterwards unless permitted by the Court, present a written statement containing the particulars of the debt sought to be set-off. (2) Effect of set-off - The written statement shall have the same effect as a plaint in a cross suit so as to enable the Court to pronounce a final judgment in respect both of the original claim and of the set-off; but this shall not affect the line, upon the amount decreed, of any pleader in respect of the costs payable to him under the decree. (3) The rules relating to a written statement by a defendant apply to a written statement in answer to a claim of set-off. O. 20, R. 19. Decree when set-off is allowed. (1) Where the defendant has been allowed a set-off against the claim of the plaintiff the decree shall state what amount is due to the plaintiff and what amount is due to the defendant, and shall be for the recovery of any sum which appears to be due to either party. (2) Appeal from decree relating to set-offany decree passed in a suit in which a set-off is claimed shall be subject to the same provisions in respect of appeal to which it would have been subject if no set-off had been claimed. (3) The provision of this rule shall apply whether the set-off is admissible under rule 6 of Order VIII or otherwise. A set-off fulfilling the requirements of Order 8 Rule 6 is generally termed a "legal set-off" to distinguish it from a set-off not admissible under Order 8 Rule. Rule 19 (3) of Order 20 however shows that the Code envisages the trial of counterclaims not falling under Order 8 Rule 6 also. Such counterclaims not falling under O. 8 Rule 6 can further be subdivided into two classes:- (A) Unascertained sums of money legally recoverable by the defendant from the plaintiff in which both parties fill the same character as they fill in the plaintiff's suit. Such a counterclaim is generally referred to as an equitable set-off - see Hargovind Vs. Shri Krishna Das Narayandas Ladha (1 ). In Sarangdhar Vs. Lakshmi Narayan (2) it was observed that there can be an equitable set-off in respect of an ascertained sum of money. With all respect such a set-off will fall under Order 8 Rule 6 and it is more appropriate to call it a legal set-off. (B) Other Counterclaims - One instance of a counterclaim which is neither a legal set-off nor an equitable set-off is provided by the facts of Ghulam Vs. Ghulam Ahmad (3 ). In a suit for recovery of possession over immovable property defendant was allowed to set up a counterclaim for specific performance of an agreement to sell the same. "ascertained sum of money" means a sum of money of which the amount is fixed and known. It does not necessarily mean a sum admitted by the other side. The words are used in contradistinction to unliquidated damages. The mere fact that an arithmetical calculation is necessary to arrive at the total sum cannot render such total an unascertained sum of money. A suit for rendition of accounts in which the plaintiff claims a decree for the balance due in his favour is a suit for an ascertained sum of money. A legal set-off falling under O. 8 Rule 6 may exceed the plaintiff's claim. In such a case the defendant will be entitled to a decree in his favour under Order 20 Rule 19. Even in cases where the legal set-off claimed is less than the plaintiff's claim it may be that the court finds that the claim of the plaintiff has not been established, but the claim of the defendant has been established. In such cases also a decree will be passed in favour of the defendant under Order 20 Rule 19. Provisions of Order 20 Rule 19 apply also to all cases of counterclaims not falling under Order 8, Rule 6. I shall hereinafter refer to a claim falling under O. 8 R. 6 as a legal set-off whether or not it exceeds the claim of the plaintiff. The expression "counterclaim" shall be used in a general sense embracing legal set-offs, equitable set-offs and counterclaims which are neither the one nor the oilier Some Courts confine the expression "set-off" to a counterclaim which does not exceed the plaintiff's claim and refer to the claim of the defendant in excess of the plaintiff's claim as counterclaim. The most important distinction between a legal set-off and a counterclaim not falling under Order 8 Rule 6 is that whereas the court is bound to entertain and adjudicate upon the legal set-off put forward by the defendant it has a discretion to refuse to adjudicate upon other counterclaims. But this discretion is to be exercised judicially. If the counterclaim arises out of the same transaction or is intimately connected with it and it would be equitable to try the counterclaim along with the plaintiff's claim, the court should adjudicate upon it in the same suit. The counterclaim need not be an action of the same nature as the original action or even analogous thereto. Order 8 R. 6 in terms does not lay down that the only relief claimed by the plaintiff in the suit should be recovery of money before a set off can be claimed. It is true that none of the illustrations to the rule relate to a case in which a claim to possession over immovable property is joined with a claim to money. It is however well known that illustrations are not exhaustive. The learned Civil Judge was of the opinion that because Order 2 R. 4 lays down that no cause of action shall be joined with a suit for the recovery of immovable property except claims for mesne profits or arrears of rent in respect of the property, for damages, for breach of any contract under which the property is held and which the relief sought is based on the same cause of action, without the leave of the court, no set-off can be allowed under Order 8 R. 6 in a suit in which the specific relief claimed is possession over immovable property and the ancillary relief is one falling under sub-rules (a), (b) and (c) of R. 4 of Order 2. In my opinion this view is erroneous. Order 8 r. 6 is not in any way governed by the provisions relating to joinder of causes of action by the plaintiff. Order 2 R. 4 itself shows that other causes of action besides those enumerated therein can be joined with a suit for recovery of immovable property with the leave of the court. It stands to reason that the defendant can claim a set-off in a suit for recovery of immovable property in which the plaintiff" chooses to join a claim for recovery of money under the provisions of Order 2 R. 4 as Order 8 R. 6 provides for it. If the plaintiff wants that the trial of his suit for recovery of immovable property should not be delayed he should not join with it a claim to recovery of money. On behalf of the respondent it was argued that a claim to mesne profits arises out of the same cause of action as the claim to possession over immovable property and if it is not put forward in the same suit it would be barred under Order 2, R. 2. In my opinion the cause of action for recovery of mesne profits is not the same as that for recovery of possession over immovable property. In this connection the following cases may be referred to Shri Chandra Vs. Joyramdanga Coal Concern (4), Venugopal Vs. Thirugnanavalli Ammal (5), Ramchandra Adaram Vs. Lodha Gouri (6), Radha Vs. Sakhu (7) and Miyan Khan Vs. Sarfaraz Khan (8 ). A contrary view was taken in Channappa Vs. Bagalkot Bank (9) under the impression, erroneous in my humble opinion, that the view taken in Ramchandra Adaram Vs. Lodha Gouri (6) could not be reconciled with the opinion of the Privy Council in Naba Kumar Vs. Radhashyam (10 ). Order 2, R3. 2 (1) lay down that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. A claim to mesne profits is based on a different cause of action. A plaintiff can only join it with a suit for recovery of immovable property by virtue of the provisions, of Order 2, R. 4. I made an obiter observation in Hasan Ali and others Vs. Smt. Khatiza and others (S. B. Civil Revision No. 02/58) decided on 4th April, 1961 that the claim for mesne profits upto the date of the institution of the suit for possession arises out of the same cause of action. That case related to a claim for mesne profits subsequent to the institution of the suit. The observation made by me in that case is erroneous. I am accordingly of the opinion that a legal set off can be claimed even in a suit tor recovery of immovable property in which the plaintiff claims a decree for money also. The counterclaim made by the defendant in the present suit thus falls under O 8, R. 6 and the court is bound to adjudicate upon it. The order of the learned Civil Judge refusing to adjudicate upon the counterclaim amounts to failure to exercise jurisdiction vested in him. Coming now to the preliminary objection sec. 105 (1) C. P. C. runs as follows: - "save as otherwise expressly provided, no appeal shall he from any order made by a Court in the exercise of its original or appellate jurisdiction, but where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memoran dum of appeal. " Although formerly there was some difference of opinion amongst the various High Courts as to the interpretation of the words "affecting the decision of the case" they are now unanimously of the opinion that they mean "affecting the decision of the case on merits" and not merely "affecting the result of the case. " Now if there is no trial of the counterclaim put forward by the defendant the decree which is passed in the suit will only deal with the claim of the plaintiff and will have nothing to do with the counterclaim of the defendant. It cannot thus be said that the order refusing to adjudicate upon the counterclaim will affect on merits the decree which the court will pass in the case. It will only affect the result. As such the decision in Purohit Swarup Narain Vs. Gopinath (11) does not bar the present revision application. In this connection I may refer to the following decisions of this Court in which the question as to when the decision can be said to have been affected on merits came up for consideration - Gopi Chand Vs. Gulab Chand (12) and Laxmi Chand Vs. Harak Chand (13)
(3.) THE preliminary objection has therefore no force. In the result the revision application is allowed, the order of the learned Civil Judge dated 5th April, 1961 is set aside and he is directed to adjudicate upon the counterclaim put forward by the defendant as it falls under Order 8, R. 6. Parties shall bear their own costs of this revision application. Let the record be returned to the trial court so that the suit may be proceeded with. .;