S.C.AGRAWAL, J. - (1.) BOTH these revision petitions have been filed against the: orders passed by the Additional District judge, Sirohi in civil suit No. 2 of 1975 heard together and are disposed of this common order.
(2.) THE facts giving rise to these revision petitions are as under: -The State Bank of Bikaner and Jaipur (hereinafter referred to as 'the Bank'), the non -petitioner herein had extended Joan facilities to the petitioner to the extent of Rs. 25,0(0/ - with the Cash Credit Account opened by the petitioner under the phaina Branch of the Bank and by way of security for the repayment of the amount due under the Cash Credit Account the petitioner had hypothecated the machinates and that stock of finished and unfinished goods and raw materials with the Bank under a hypothecation agreement dated 3 rd March 1972 executed by the petitioner in favour of the Bank. On 10th July, 197i the Bank filed a suit against the petitioner in the court of the Additional District Judge, Sirohi for the recovery of Rs. 38,303.88 on account of the amount due under the loan advanced by the Bank to the petitioner under the Cash Credit Account, the interest payable op the said amount of loan as well as the expenses incurred by the Bank in engaging a chowkidar to keep a watch over the goods which have been hypothecated by the petitioner with the Bank under the hybothecation agreement and other incidental expenses incurred by the Bank in connection with aforesaid loan. In the said suit the petitioner filed his written statement on 3rd April, 1975 In paragraph 2 of the additional pleas in the aforesaid written statement, the petitioner has raised the plea that the Bank by taking illegal possession of the factory and the godown of the petitioner on 31st October, 1972 had prevented the petitioner from carrying on his business, as a result of which the petitioner had suffered a loss of Rs. 1,000/ - per month in respect of which the petitioner was reserving his right to file a separate suit. In the aforesaid paragraph of the additional pleas the petitioner has further pleaded that the Bank has retained with it machines, chemicals and other articles described in the list annexed to the written statement and that the said goods which were of the value of Rs. 44,775/ - have now deteriorated and that the petitioner is entitled to receive the said amount from the Bank as the said loss has been caused on account of negligence of the Bank for which it is responsible The petitioner In the aforesaid paragraph of his written statement has also stated that in law, no court fee is payable but in case court fee is demanded on the aforesaid amount, he is willing to pay the fame. After the filing of the aforesaid written statement, an application was moved by the Bank, wherein it was submitted that the claim set -up by the petitioner in written statement is in the nature of a counter claim and that the said claim cannot be adjudicated upon unless the petitioner is required to pay ad valorem court fee on the same. The said application was contested by the petitioner who submitted that the claim set up by him in the written statement neither amounted to a set off, nor to a counter claim but is a plea of adjustment and, therefore, no court fees is payable on it. The Additional District Judge, by his order dated 15th September, 1975 has held that the plea raised by the petitioner in his written statement could not regarded as a plea of adjustment but is a counter claim and that the petitioner is liable to pay ad valorem court fee on the same. The Additional District Judge, therefore, directed the petitioner to pay ad valorem court fee on the sum of Rs. 44,775/ - claimed by him in paragraph 2 of the additional pleas of his written statement within a period of one month from the date of the passing of the order. Being aggrieved by the aforesaid order dated 15th September, 1975, the petitioner has filed a Revision petition No. 608/1975.
(3.) DURING the pendency of the aforesaid revision petition in this Court, the petitioner, on 20th of February, 1979, moved an application in the court of she Additional District Judge for the amendment of the written statement so as to add paragraph 1A in the additional pleas to the written statement By the aforesaid amendment the petitioner sought to plead chat on account of the neligence of the Bank, damage to the extent of Rs. 44,775/ - was caused to the goods and the machines of the petitioner and that the aforesaid amount bad already been adjusted by the petitioner in the account of the Bank with him and the information about the same was also given by him to the Bank on 1st January, 1975 and that as a result of the aforesaid adjustment money is recoverable by the petitioner from the Bank and that the suit of the Bank is not maintainable. The said application for the amendment of the written statement was opposed by the Bank The Additional District Judge, by his order dated 12th May, 1979, has dismissed the said application filed by the petitioner for amendment of the written statement. Civil Revision Petition No. 194/1979 has been filed by the petitioner against the order dated 12thMay 1979, passed by the Additional District Judge, rejecting the application of the amendment of the written statement.;